Michigan Law Review
Volume 103 | Issue 6
2005
National Identity in a Multicultural Nation: The
Challenge of Immigration Law and Immigrants
Kevin R. Johnson
University of California, Davis
Bill Ong Hing
University of California, Davis
Follow this and additional works at: http://repository.law.umich.edu/mlr
Part of the Immigration Law Commons, Law and Race Commons, and the Law and Society
Commons
Recommended Citation
Kevin R. Johnson & Bill O. Hing, National Identity in a Multicultural Nation: The Challenge of Immigration Law and Immigrants, 103
Mich. L. Rev. 1347 (2005).
Available at: http://repository.law.umich.edu/mlr/vol103/iss6/10
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NATIONAL IDENTITY IN A
MULTICULTURAL NATION: THE
CHALLENGE OF IMMIGRATION LAW AND
IMMIGRANTS
Kevin R. Johnson* and Bill Ong Hing**
WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL
IDENTITY. By Samuel P. Huntington. New York: Simon & Schuster.
2004. Pp. xvii, 428. $39.95
Samuel Huntington's provocative new book Who Are We?: The
Challenges to National Identity is rich with insights about the negative
impacts of globalization and the burgeoning estrangement of people
and businesses in the United States from a truly American identity.
The daunting question posed by the title of the book is well worth
asking. After commencing the new millennium with wars in
Afghanistan and Iraq, U.S. military torture of Iraqi prisoners,
indefinite detentions of U.S. citizens declared by the President
to be "enemy combatants," and a massive domestic "war on terror"
that has punished and frightened Arab, Muslim, and other immi­
grant communities, many Americans have asked themselves the very
same question.
Professor Huntington's fear is that the increasingly multicultural
United States could disintegrate into the type of ethnic strife that
destroyed the former Yugoslavia during the 1990s, or, in less dramatic
fashion, divided Quebec for much of the twentieth century. Forming a
cohesive national identity with a heterogeneous population is a
formidable task but, as Professor Huntington recognizes, critically
important to the future of the United States.1
* Associate Dean for Academic Affairs, School of Law and Mabie/Apallas Professor of
Public Interest Law and Chicana/o Studies, University of California at Davis. AB. 1980,
University of California, Berkeley; J.D. 1983, Harvard. - Ed. Jack Ayer's insightful
comments helped spur my thinking on the issues raised in this review. We appreciate the
comments of Jack Ayer and Hiroshi Motomura, who commented on a draft of this paper.
We thank Dean Rex Perschbacher for his generous support of our research. David Yun
provided much-appreciated editorial assistance.
** Professor of Law and Asian American Studies, Director for Asian American Studies
Program, University of California, Davis. A.B. 1971, University of California, Berkeley; J.D.
1974, University of San Francisco. - Ed.
1 . The public shares his concerns with the cultural impacts of immigration on the nation.
See NPR/Kaiser/Kennedy School Poll, Immigration: Summary of Findings (Oct. 2004)
1347
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Michigan Law Review
(Vol. 103:1347
Professor Huntington identifies and analyzes a perceived loss of
national identity in the United States over the tail end of the twentieth
century, during roughly the same period that the civil rights revolution
forever changed the nation. In that analysis, Who Are We? takes a
controversial stance about U.S. immigration law and policy, which has
proven to be a formidable challenge to policymakers and frequently
touches a nerve with the public. Professor Huntington sounds a
familiar - if not tired - alarm that immigration and immigrant law
and policy are out of control and must be reformed.
In asking the nation to reconsider its immigration policies,
Professor Huntington again asks a question well worth asking.
Immigration frequently has provoked controversy in the United States
and, even when not at the forefront, lurks ominously in the
background of the discussion of many policy issues, from public
benefits to affirmative action to driver 's license eligibility for
undocumented immigrants. Time and again, immigration has proven
to be a volatile political issue in the United States. Although the
nation often claims to be "a nation of immigrants" open to the
"huddled masses,"2 sporadic outbursts of anti-immigrant sentiment
mar its history,3 dating as far back as the Alien and Sedition Acts of
the 1790s.4
In Who Are We?, Profe ssor Huntington expresses fear about the
impacts of immigrants - specifically Mexican immigrants - on the
United States, its culture, and, most fundamentally, the "American"
way of life. He sees immigration and immigrants as transforming a
white-Anglo-Saxon cultural nation and fears what he sees on the
horizon for the United States, which he suggests is something
apocryphal, raising the specter of the fall of Rome (pp. 11-12). In
expressing such fears, Professor Huntington ties immigration to
critical aspects of national identity and sees the identity of the United
(reporting poll results showing that public has less negative views toward immigration than it
did immediately after September 1 1 but remains concerned with impacts of immigration on
U.S. culture), available at http://www.npr.org/templates/story/story.php?storyld=4062605
(last visited Feb. 23, 2005).
2. For a historical review of the oscillating nature of U.S. immigration law and policy,
see ROGER DANIELS, GUARDING THE GOLDEN DOOR: AMERICAN IMMIGRATION AND
IMMIGRANTS SINCE 1882 (2004); BILL ONG HING, DEFINING AMERICA THROUGH
IMMIGRATION POLICY (2004) [hereinafter HING, DEFINING AMERICA].
3. See JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATJVISM
1860-1925 (3d ed. 1992); LUCY E. SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS
AND THE SHAPING OF MODERN IMMIGRATION LAW (1995); RONALD TAKAKI, STRANGERS
FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS (rev. ed. 1998).
4. See generally JOHN C. MILLER, CRISIS IN FREEDOM: THE ALIEN AND SEDITION
ACTS (1951) (analyzing impacts of Alien and Sedition Acts); JAMES MORTON SMITH,
FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES
(1956) (same).
May 2005]
Immigration and National Identity
1349
States changing slowly but surely as new and different - culturally
and otherwise - immigrants are coming in large numbers to
the United States.
We agree wholeheartedly with Professor Huntington that national
identity is central to the discussion of immigration and immigrants. In
turn, the race and culture of immigrants affect the national identity.
Unfortunately, such aspects of immigration law are frequently
overlooked in academic studies of the subject.5
Immigration, as it has done throughout U.S. history, is changing
the face of the nation. Moreover, immigration law impacts domestic
minority communities and civil rights in the United States.6 Indeed,
Professor Huntington's prescription of assimilation and the end of any
r acial and ethnic consciousness is a more general critique of identity
politics and, at its core, a challenge to multiculturalism. He leaves little
doubt that he deeply disagrees with the claim of Nathan Glazer that
"we are all multiculturalists now."7
Immigration has contributed to the multicultural nature of the
United States and has transformed the nation and its civil rights
agenda.8 The nation cannot ignore the impacts of immigration on
national identity, race, and civil rights if it wants to avoid potential
unrest from those opposing the transformations taking place - the
vigilante groups in Arizona using violence to enforce the immigration
laws, immediately come to mind9 - and immigrants who may resist
efforts at forced assimilation, deportation, and other actions that
adversely impact immigrant communities. To ignore the changes risks
a domestic explosion like that which the nation has never seen.
The integration of immigrants into the political, social, and
economic fabric of the United States undisputedly is an important
public policy issue that fully warrants the careful attention of
academics and policymakers. Law and policy should strive to foster
integration of immigrants into U.S. society, for example, by seeking to
eliminate the immigrant caste structure in the labor market.
5. See generally George A. Martinez, Race and Immigration Law: A Paradigm Shift?,
2000 U. ILL. L. REV. 517 (introducing a series of essays analyzing the analysis of race in
immigration law scholarship).
6. See BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH
IMMIGRATION POLICY 1850-1990 (1993) [hereinafter HING, MAKING AND REMAKING
ASIAN AMERICA).
7. NATHAN GLAZER, WE ARE ALL MULTICULTRALISTS Now (1997).
8. See Kevin R. Johnson, The End of "Civil Rights " as We Know It?: Immigration and
Civil Rights in the New Millennium, 49 UCLA L. REV. 1481 (2002).
9. See, e.g., Nick Madigan, Police Investigate Killings of Illegal Immigrants in Desert,
N.Y. TIMES, Oct. 23, 2002, at AS; see also infra text accompanying notes 63-65 (discussing
the potential for a nativist backlash against immigrants).
1350
Michigan Law Review
[Vol. 103:1347
Unfortunately, law has often done the opposite, 10 with distinctions
between different groups of immigrants thwarting, if not facilitating,
their assimilation into American social life.
We strongly disagree, however, with Professor Huntington's
normative evaluation of the impacts of immigration and what changes
in immigration law and policy are necessary. One glaring weakness of
Who Are We? is that it fails to weigh the positive impacts of
immigration and immigrants. Consequently, it resembles a cost-benefit
analysis that focuses exclusively on costs.
Importantly, immigration is a function of economic, social, and
political pressures that are not wholly within any one nation's
sovereign control. Closed borders simply are not a policy option in the
United States today. Nor, in light of the modem civil rights
consciousness, are blanket prohibitions on the immigration of certain
races or national origins generally viable. Indeed, the various national
origin, religious, and other profiling measures utilized by the
federal government in the "war on terror" - with national security
perhaps the most compelling justification for such measures - have
provoked controversy.1 1
One can acknowledge the changes brought by immigration,
proclaim the need for the assimilation of immigrants, and, at the same
time, offer more constructive approaches than the alarm and
pessimism of Who Are We?12 Professor Huntington's book is
surprisingly slim on policy recommendations.13 Rather, it is more of a
10. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 (2002)
(holding that undocumented immigrants cannot recover backpay for employer's violation of
federal labor law). For criticism of Hoffman Plastic, see Christopher David Ruiz Cameron,
Borderline Decisions: Hoffman Plastic Compounds, the New Bracero Program, and the
Supreme Court's Role in Making Federal Labor Policy, 5 1 UCLA L. REV. 1 (2003); Robert I.
Correales, Did Hoffman Plastic Compounds, Inc., Produce Disposable Workers?, 14 LA
RAZA L.J. 103 (2003).
11. See Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102
COLUM. L. REV. 1413 (2002); see also infra text accompanying notes 37-39 (discussing
criticism of the U.S. government's "war on terror").
12. See, e.g. , RICHARD ALBA & VICTOR NEE, REMAKING THE AMERICAN
MAINSTREAM: ASSIMILATION AND CONTEMPORARY IMMIGRATION (2003); LINDA
CHAVEZ, OUT OF THE BARRIO: TOWARD A NEW POLITICS OF HISPANIC ASSIMILATION
(1991); PETER D. SALINS, ASSIMILATION, AMERICAN STYLE (1997); REINVENTING THE
MELTING POT: THE NEW IMMIGRANTS AND WHAT IT MEANS TO BE AMERICAN (Tamar
Jacoby ed., 2004).
13. Without discussing the details, Professor Huntington endorses in principle the
reform proposals outlined in a series of reports issued by the U.S. Commission on
Immigration Reform in the 1990s (pp. 200, 201, 243). The final report addressed policies
designed to integrate immigrants into U.S. society, including a voluntary "Americanization"
program that focused on promoting education and facilitating naturalization. See U.S.
COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND
IMMIGRANT POLICY 25-58 (1997). The Commission emphasized that "[e]thnic and religious
diversity based on personal freedom is compatible with national unity," id. at 25, a point that
Professor Huntington ignores. For analysis of the Commission's reports, see Carlos Ortiz
May 2005]
Immigration and National Identity
135 1
general critique of the immigration status quo with a sweeping
endorsement of reducing immigration and policies fostering immigrant
assimilation, with little in the way of specific recommendations about
how this might be accomplished in the modern United States.
One aspect of Professor Huntington's analysis has provoked anger
and strident charges of racism. He unequivocally proclaims that
immigration from Mexico is a specific - and most dangerous - threat
to the national identity and unity (pp. 221-56). In Professor
Huntington's estimation, Mexican immigrants refuse to assimilate into
the mainstream of U.S. society and live and act in separatist - "un­
American" - ways.
Even though some observers have labeled Professor Huntington's
arguments as racist,14 Who Are We? should not be disregarded as a
racist tract. Professor Huntington grounds his concerns with the
changes caused by Mexican immigrants to the nation's culture, with a
particular emphasis on language (Spanish rather than English) and
religion (Catholic rather than Protestant). Although we fear and
suspect that language, national origin, and religion in certain
circumstances serve as convenient proxies for race, we take Professor
Huntington at his word that race is not the core basis of his concern
with Mexican immigrants. Unfortunately, the same cannot be said for
all those who seek to reduce immigration from Mexico artd some anti­
immigrant activists who may invoke his arguments to attempts to
justify restrictionist immigration laws and policies.
This review focuses on two fundamental flaws in Professor
Huntington's analysis of immigration in the modern United States.
First, contrary to the claim that a separatist Mexican nation is
emerging in this country, all immigrants in fact do assimilate to a
certain degree into U.S. social life.15 The available empirical evidence
Miranda, United States Commission on Immigration Reform: The Interim and Final Reports,
38 SANTA CLARA L. REV. 645 (1998).
14. See Walter Ellis, Welcome to the United States of Latin America, TIMES HIGHER
EDUC. SUPPLEMENT, June 18, 2004, at 16.
15. See ALBA & NEE, supra note 12, at 215-70 (summarizing evidence of assimilation of
immigrants and their descendants in United States); T. Alexander Aleinikoff & Ruben G.
Rumbaut, Terms of Belonging: Are Models of Membership Self-Fulfilling Prophecies?, 13
GEO. IMMIGR. L.J. 1, 10 (1998) ("A review of the social science research literature on
immigration reveals that assimilation - whether considered intergenerationally or among
the most recent waves of immigrants - appears to be progressing roughly as it always has.
This is particularly the case with respect to linguistic assimilation, which is frequently seen as
the most important marker of acculturation." (emphasis added) (footnote omitted)); see also
BILL ONG HING, TO BE AN AMERICAN: CULTURAL PLURALISM AND THE RHETORIC OF
ASSIMILATION 152-55 (1997) (hereinafter HING, TO BE AN AMERICAN] (discussing the
evidence of the cultural assimilation of immigrants).
On assimilation of Mexican immigrants and Mexican Americans, see KEVIN R.
JOHNSON, How DID You GET TO BE MEXICAN?: A WHITE/BROWN MAN'S SEARCH FOR
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Michigan Law Review
[Vol. 103:1347
shows that, in the aggregate, immigrants from all nations, including
Mexico, overwhelmingly participate in the labor market, learn
English, exhibit high labor participation rates, are firmly committed to
family, and participate in community life in ways comparable to other
Americans.16 This is not surprising given that most immigrants come to
the United States because they embrace American political values and
economic freedoms.17
None of this should be taken as suggesting that stresses and
tensions do not result from immigration and the presence of
newcomers in the community. Immigrants do not assimilate instantly,
and the integration process is not without individual and social
stresses.18 Nevertheless, immigrant assimilation generally has prevailed
over the long haul.
Consequently, we do not entertain the same fears about
immigration and immigrants that Professor Huntington holds. We
therefore unequivocally reject any suggestion that efforts must be
made to curtail Mexican immigration, and find unnecessary
mandatory assimilation programs to destroy Mexican culture, cabin
Catholicism, and require the embrace of Protestant values. We
recognize that change brought by immigration - as well as cultural
change generally19 - is normal and something that simply cannot be
halted in its tracks, for example, by severely reducing immigration or
mandating "being American," whatever that might be.
In certain respects, Professor Huntington suffers from a myopia,
seeing only the aspects of history and the evidence that support his
case. One aspect of U.S. history that he does not fully acknowledge is
that assimilation of immigrants has persistently been viewed as a
problem with the immigrants of any particular period. Early in this
nation's history, for example, the claim was that German and Irish
immigrants - later replaced by Chinese, Japanese, southern and
eastern European, and later Mexican immigrants - were racially
IDENTITY (1999); David G. Gutierrez, Globalization, Labor Migration, and the Demographic
Revolution: Ethnic Mexicans in the Late Twentieth Century, in THE COLUMBIA HISTORY OF
LATINOS IN THE UNITED STATES SINCE 1960, at 43 (David G. Gutierrez ed., 2004); Kevin R.
Johnson, "Melting Pot" or "Ring of Fire"?: Assimilation and the Mexican-American
Experience, 85 CAL. L. REV. 1259 (1997) [hereinafter Johnson, "Melting Pot"] ; see also
DAVID G. GUTIERREZ, WALLS AND MIRRORS: MEXICAN AMERICANS, MEXICAN
IMMIGRANTS, AND THE POLITICS OF ETHNICITY (1995) (analyzing commonalities and
differences among Mexican immigrants and Mexican Americans).
16. See supra note 15 (citing authorities).
17. See infra text accompanying notes 43-83.
18. See infra text accompanying notes 43-83.
19. For an analysis of the process of cultural change, see Madhavi Sunder, Cultural
Dissent, 54 STAN. L. REV. 495 (2001).
May 2005]
Immigration and National Identity
1353
inferior and refused to assimilate into mainstream U.S. society.20
These claims were buttressed by the assertion that the current cohort
of immigrants differed from the last group. Despite those claims, the
assimilation process has in most respects been successful, and most
observers see the past efforts to limit the immigration of
"unassimilable" persons as unfortunate mistakes that mar, not elevate,
the nation's proud history.
We contend that today's immigrants in many respects are not all
that different from those of past generations. Indeed, given the
influence of U.S. culture throughout the world through technology,
immigrants in the twenty-first century may be more ready to
assimilate than past immigrants in our history. Ease of travel and the
technology of the information age make it more likely that individuals
will immigrate with a better understanding of the United States and
share bonds with a number of nations.21 Nonetheless, the fact that
many immigrants to the United States are people of color - and
much more racially diverse than past immigrant cohorts complicates matters considerably and makes assimilation more
difficult than for most groups of white immigrants.
Second, even if one were to conclude that today's immigrants from
Latin America were not assimilating, the answer in our estimation
would be to fashion law and policy that truly fosters their integration
into U.S. society. Between the lines, Professor Huntington, in contrast,
suggests the need for a dramatic reduction in the level of immigration
because the nation faces, in his view, an unprecedented period of
"persistent high levels of immigration" (p. 196). At the same time,
however, he admits that the nation historically has adapted to
comparable immigration levels (pp. 1 99-204).
Who Are We? no doubt will be invoked to justify severe reductions
of the current levels of immigration. Such calls are premised on the
fundamental idea that it is permissible, desirable, and necessary to
restrict immigration into the United States. Powerful social, political,
and economic forces, however, bring immigrants to the United States,
a land of remarkable economic, social, and political opportunity.
These forces have proven time and again to be difficult to thwart by
immigration enforcement policies, especially policies that are
consistent with American conceptions of individual rights. Indeed,
even though the United States greatly fortified its border with Mexico
over the 1990s, and, after the events of September 1 1 , 2001, further
increased border fortifications and monitoring, we have seen an
20. See infra text accompanying notes 84-136.
21. See Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. REV. 1005 (2001).
1354
Michigan Law Review
[Vol. 103:1347
increase in the undocumented immigrant population in the United
States to at least seven million.22
Part I of this essay scrutinizes Professor Huntington's main claims
about immigration and immigrants in Who Are We? Part II compares
his analysis and prescriptions with past nativist concerns with
immigration and pressures placed on immigrants from Asia and
Mexico to assimilate into the mainstream. Part III focuses on the
aspect of Professor Huntington's book with which we agree that immigration touches on important issues of national identity
and race - but analyzes the dangers of its approach and
offers policy recommendations that address some of Professor
Huntington's concerns.
I.
PROFESSOR HUNTINGTON'S ANSWER TO "WHO ARE WE?"
Professor Huntington endeavors to answer the all-important
question of who we are as a nation at the beginning of the twenty-first
century. This is especially appropriate given the monumental changes
that have taken place in the United States over the last fifty years. The
end of state-sanctioned racial segregation, the struggle for civil rights,
and the growth and acceptance of a more multicultural, multiracial
nation require reflection about what the nation has become and the
national identity embraced by modern Americans.
Professor Huntington answers the question by concluding that the
nation has become divided, more varied culturally, linguistically, and
religiously. He does not just describe the picture but contends that the
changes represent an ominous movement toward national disunity, if
not disintegration.
The fear of the impacts of immigrants on U.S. society is nothing
new.23 Past restrictionist works have focused on particular national
origin groups of immigrants as the particular "problem" of the day.
What is controversial given modern civil rights sensibilities is
Professor Huntington's hint that national cohesion would improve if
we did not have so many Mexican immigrants in the United States.24
22. This is the federal government's estimate as of 2000. See U.S. DEP'T OF HOMELAND
SECURITY, 2002 YEARBOOK OF IMMIGRATION STATISTICS 214 (Table Q) (2003). The
difficulties of border enforcement are outlined in Kevin R. Johnson, Open Borders?, 5 1
UCLA L. REV. 193, 245-52 (2003) [hereinafter Johnson, Open Borders?] ; see also RUTH
ELLEN WASEM, UNAUTHORIZED ALIENS IN THE UNITED STATES: ESTIMATES SINCE 1986,
at CRS-4 (Congressional Research Service, 2004) (reporting estimates of 9.3 million
undocumented immigrants in United States in 2002); Jerry Seper, Rounding Up Al/ Illegals
'Not Realistic,' WASH. TIMES, Sept. 10, 2004, at 1 (quoting high level Department of
Homeland Security official to the effect that removal of all undocumented immigrants from
United States was "not realistic").
23. See infra text accompanying notes 25-42.
24. See infra text accompanying notes 43-83.
Immigration and National Identity
May 2005]
1355
Ultimately, this is not simply an immigration issue but one of the
treatment - and thus the civil rights of - all persons of Mexican
ancestry in the country.
A.
Old Answers to New Questions
Professor Huntington is far from the first to sound the immigration
alarm. His book is one of a recent spate of books calling for
immigration reform. Beginning in the early 1990s, calls have regularly
been made to dramatically reduce immigration. Anti-immigrant
positions grab the headlines and sell well in the book stores. Best
sellers in this genre include Victor Davis Hanson, Mexifornia: A State
of Becoming (2003) ,25 Patrick J. Buchanan, Death of the West: How
Dying Populations and Immigrant Invasions Imperil Our Country and
Civilization (2002),26 Michelle Malkin, Invasion: How America Still
Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our
Shores (2002),27 and Peter Brimelow, Alien Nation: Common Sense
About America's Immigration Disaster (1995).28 The titles
alone suggest the depth and seriousness of the concern with
immigration and immigrants.
Harvard's ivory tower, often thought of as a liberal bastion, has
produced a number of calls for immigration reform. Professor
Huntington's colleague Arthur Schlesinger - with whom he no doubt
agrees on many issues - in The Disuniting of America: Reflections on
a Multicultural Society (1992)29 contends that multiculturalism is
literally tearing the nation apart. Similarly, Professor George Borjas
alleges that too many low-skilled immigrants are coming to the United
States and that the immigration laws should be amended to increase
25.
VICTOR DAVIS HANSON, MEXIFORNIA: A STATE OF BECOMING (2003).
26.
PATRICK
J.
BUCHANAN, THE DEATH O F THE WEST: How DYING POPULATIONS
AND IMMIGRANT INVASIONS IMPERIL OUR COUNTRY AND CIVILIZATION (2002).
27.
MICHELLE MALKIN, INVASION: How AMERICA STILL WELCOMES TERRORISTS,
CRIMINALS, AND OTHER FOREIGN MENACES TO OUR SHORES (2002) (hereinafter MALKIN,
INVASION] ; see also MICHELLE MALKIN, IN DEFENSE OF INTERNMENT: THE CASE FOR
RACIAL PROFILING IN WORLD WAR II AND THE WAR ON TERROR
28.
PETER
BR!MELOW,
ALIEN
NATION:
COMMON
(2004).
SENSE
ABOUT
AMERICA'S
(1995). Similar sensationalistic accounts are common in the
popular press. See, e.g., Donald L. Barlett & James B. Steele, Who Left the Door Open?,
TIME, Sept. 20, 2004, at 51.
IMMIGRATION DISASTER
29.
ARTHUR M. SCHLESINGER JR., THE DISUNITING O F AMERICA: REFLECTIONS ON A
(1992); see J. Harvie Wilkinson III, The Law of Civil Rights and
the Dangers of Separatism in Multicultural America, 47 STAN. L. REV. 993 ( 1995) (making
similar arguments).
MULTICULTURAL SOCIETY
1356
Michigan Law Review
[Vol. 103:1347
the number of skilled immigrants and decrease the number of those
who are unskilled.30
Restrictionist positions are not limited to commentators of any
particular political persuasion. At least until relatively recently in his
career, Professor Huntington had been viewed as something of a
liberal. Some progressives have embraced restrictionist positions. For
example, Todd Gitlin, The Twilight of Common Dreams: Why
America Is Wracked by Culture Wars (1995),31 Michael Lind, The Next
American Nation: The New Nationalism and the Fourth American
Revolution (1995) ,32 and Roy Beck, The Case Against Immigration:
The Moral, Economic, Social, and Environmental Reasons for
Reducing U.S. Immigration Back to Traditional Levels (1996),33
contend that domestic racial minorities, and working people
generally, in the United States would benefit from drastic reductions
in immigration.
Alarmist books about the harms of immigration have a long, if not
illustrious, history.34 Arguments made in books such as these have
helped to justify drastic policy measures, such as the discriminatory
national origins quota system enacted by Congress in 1924 that
favored immigrants from northern Europe over all others.35
Although the arguments are not entirely new, Professor
Huntington's book has attracted considerable attention. This is in no
small part a result of the fact that his bestseller The Clash of
Civilizations and the Remaking of the World36 has been read as
30. See
GEORGE J. BORJAS, FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS
ON THE U.S. ECONOMY
( 1990);
GEORGE
J.
BORJAS, HEAVEN'S DOOR: IMMIGRATION
POLICY AND THE AMERICAN ECONOMY (1999).
31.
TODD GITLIN, THE Tw!LIGHT OF COMMON DREAMS: WHY AMERICA IS WRACKED
BY CULTURE WARS
32.
161-65 (1995).
MICHAEL LIND, THE NEXT AMERICAN NATION: THE NEW NATIONALISM AND THE
FOURTH AMERICAN REVOLUTION
33.
AND
129-37 (1995).
ROY BECK, THE CASE AGAINST IMMIGRATION: THE MORAL, ECONOMIC, SOCIAL,
ENVIRONMENTAL
REASONS
FOR
REDUCING
U.S.
IMMIGRATION
BACK
TO
TRADITIONAL LEVELS (1996).
34. See, e.g.,
MADISON GRANT, THE PASSING OF THE GREAT RACE OR THE RACIAL
BASIS OF EUROPEAN HISTORY
(1916); LOTHROP STODDARD, THE RISING TIDE OF COLOR
AGAINST WHITE WORLD-SUPREMACY (1920).
35. See Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A
"Magic Mirror" into the Hean of Darkness, 73 IND. L.J. 1 1 1 1, 1131-33 (1998) [hereinafter
Johnson, Race, the Immigration Laws, and Domestic Race Relations]. See generally
MATTHEW
FRYE
JACOBSON,
WHITENESS
OF
A
DIFFERENT
COLOR:
EUROPEAN
(1998) (analyzing nativism directed at southern
and eastern European immigrants that led to Congressional passage of national origins
quota system).
IMMIGRANTS AND THE ALCHEMY OF RACE
36.
SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF
THE WORLD
(1996). For critical commentary on this book, including its racial and religious
Immigration and National Identity
May 2005)
1357
predicting the clash between Islam and the West that erupted in the
terrorist acts of September 11, 2001.
Professor Huntington contends that timing makes his call for
immigration restrictions different from those of the past. Over the
1990s, concerns had been expressed over the changes that had swept
the nation due to immigration and the emergence of a truly
multicultural nation.37 Fears over immigration escalated dramatically
after September 1 1 , with the terrorist acts being the handiwork of a
group of noncitizens. Immigration law, which is known for the vast
powers delegated to the Executive Branch and Congress, became a
centerpiece of the nation's domestic war on terror.38 This, to a certain
extent, is understandable in light of the fact that noncitizens were
responsible for the horrible violence of that day. Many influential
observers, however, believe that the federal government went
overboard in its response, sacrificing the civil rights of Arab and
Muslim noncitizens with minimal gains to national security.39
Much of the controversy generated by Who Are We? results from
its treatment of immigrants from Mexico. Professor Huntington views
Mexican immigrants as a dire threat to the security of the United
States because they threaten the national identity.40 The ideas
expressed about Mexican immigrants were the subject of an adapted
version of one chapter of the book published in Foreign Policy, which
implications, see, for example, "THE CLASH OF CIVILIZATIONS?" ASIAN RESPONSES (Salim
Rashid ed., 1997).
37. See Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism:
Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial
Society, 81 CAL. L. REV. 863 (1993); see, e.g., Doriane Lambelet Coleman, The Seattle
Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 ( 1998)
(analyzing efforts to reconcile principles of multiculturalism and assimilation in case of
controversial cultural practice known as female genital mutilation).
38. See Karen Engle, Constructing Good Aliens and Good Citizens: Legitimizing the
War on Terror(ism), 75 U. COLO. L. REV. 59 (2004) (analyzing the "war on terrorism" within
the history of immigration law and policy); Donald Kerwin, Counterterrorism and Immigrant
Rights Two Years Later, 80 INTERPRETER RELEASES 1401, 1401 (2003) ("Immigration policy
rapidly became the most visible domestic tool in the war on terror.").
39. See, e.g., U.S.
OFFICE OF THE INSPECTOR GENERAL, THE SEPTEMBER
11
DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD O N IMMIGRATION CHARGES
IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER
OFFICE
11
ATTACKS
(2003); U.S.
OF THE INSPECTOR GENERAL, REPORT TO CONGRESS ON IMPLEMENTATION OF
SECTION
1001
MIGRATION
OF THE
POL'Y
USA PATRIOT
INST.,
AMERICA'S
ACT
(2003);
MUZZAFER A. CHISHTI, ET. AL.,
CHALLENGE:
DOMESTIC
SECURITY,
CIVIL
11 (2003); Susan M. Akram & Kevin
R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The
Targeting of Arabs and Muslims, 58 N .Y .U. ANN. SURV. AM. L. 295, 351 -55 (2002); David
Cole, Enemy Aliens, 54 STAN. L. REV. 953 (2002); Leti Volpp, The Citizen and the Terrorist,
49 UCLA L. REV. 1575 (2002).
LIBERTIES, AND NATIONAL UNITY AFTER SEPTEMBER
40. See infra text accompanying notes 66-83.
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[Vol. 103:1347
argues that Mexican immigration is a serious political, economic, and
cultural threat to the United States.41 This article provoked a firestorm
of controversy, including the charge that the article would never have
been published in Foreign Policy but for that Professor Huntington
was one of the journal's founders.42
B.
Assimilation, Multiculturalism, and National Identity
At the beginning of the book, Professor Huntington declares
himself to be a "Patriot" as well as a scholar (p. xvi). Recognizing the
potential for bias, he writes that "I attempt to engage in as detached
and thorough an analysis of the evidence as I can, while warning the
reader that my selection and presentation of the evidence may well be
influenced by my patriotic desire to find meaning and virtue in
America's past and its possible future." (p. xvii). As we shall see,
Professor Huntington's warning is well-taken, for the picture that he
paints, and his review of the evidence, is far from complete.
In evaluating the future, Professor Huntington appears firmly
wedded to the past and the unified national identity that he believes
once existed in the United States. As the title of the book suggests,
Professor Huntington frets over the splintered national identity and
longs for the cohesive nation that dominated before the monumental
civil rights changes of the twentieth century. The post-September 1 1
reaction of the people o f the United States, and the wave o f patriotism
that swept the country, fail to calm Professor Huntington.
Who Are We? begins with a discussion analyzing the "crisis of
national identity" and uses as an example a 1998 Gold Cup soccer
game between the United States and Mexico in Los Angeles in which
fans, predominantly of Mexican ancestry, booed the American team
(p. 5). Professor Huntington fails to explore the complexities of the
event, such as the fact that animosity toward the United States may
have been fueled by the shabby treatment of Mexican immigrants by
41. Samuel P. Huntington, The Hispanic Challenge, FOREIGN POLI CY, Mar./Apr. 2004,
at 30. A few years ago, Professor Huntington made similar arguments in a background paper
for the Center for Immigration Studies, a group devoted to reducing immigration levels, and
equated Mexican immigrants to an invading army. See Samuel P. Huntington, Reconsidering
Immigration: ls Mexico a Special Case? 5 (Center for Immigration Studies Backgrounder,
Nov. 2000), available at http://www.cis.org/articles/index.html (last visited Jan. 30, 2005).
That paper states that
[ijf over one million Mexican soldiers crossed the border Americans would treat it as a major
threat to their national security and react accordingly. The invasion of over one million
Mexican civilians . . . would be a comparable threat to American societal security, and
Americans should react against it with comparable vigor. . . . Mexican immigration is a
unique, disturbing, and loo ming challenge to our cultural integrity, our national identity, and
potentially to our future as a country.
Id. (emphasis added).
42. See Letters, FOREIGN POLICY, May/June 2004, at 4.
May 2005)
Immigration and National Identity
1359
the federal government or may represent an effort to protest against
the anti-Mexican sentiment that swept California in the 1990s.43 The
focus on the soccer game foreshadows Professor Huntington's
concentrated analysis of the problems of Mexican immigration and
immigrants to follow.44
Using this and other examples, Professor Huntington explores the
components of identity (pp. 21-33) and the specific elements of U.S.
national identity (pp. 37-58). He expresses general concern about the
transnational identities of persons and corporations. (p. 7). Although
fascinating, the allegiance of multinational corporations is touched on
only briefly by Professor Huntington. As a whole, Who Are We?
focuses more on people - immigrants and racial minorities in
particular - and minimally on multinational corporations.45
To Professor Huntington, the ties that bind the American people
are "Anglo Protestant culture" (pp. 59-80), the " American creed" (the
commitment to a set of political values),46 and the Christian religion.47
Assimilation to these core American values is vitally important. He
adds but another metaphor to illustrate the need for immigrant
assimilation: "[I)mmigration adds celery, croutons, spices, parsley, and
other ingredients that enrich and diversify the taste, but which are
absorbed into what remains fundamentally tomato soup" (p. 129).
In analyzing national identity, Professor Huntington discusses
assimilation of immigrants extensively (pp. 178-219). He asserts that
the United States must reduce immigration to promote assimilation as
in the past (pp. 195-96). Dual citizenship, which Professor Huntington
believes has discouraged the formation of an American identity
among recent immigrants, should be disfavored.48 A core claim of Who
Are We? is that Latina/os fail to assimilate and fail to adopt an
American identity.49
43. For a sophisticated analysis of the division in the Latina/o community in a major
boxing match in Los Angeles between Mexican-American and Mexican fighters in which the
U.S. fans fervently supported the foreign boxer, see Yxta Maya Murray, The Latino­
American Crisis of Citizenship, 31 U.C. DAVIS L. REV. 503, 559-73 (1998).
44. See infra text accompanying notes 66-83.
45. For a detailed analysis of the issue of the allegiance of multinational corporations,
see Lelia Mooney Sirotinsky, On Corporate Citizenship (2004) (unpublished manuscript on
file with author).
46. Pp. 66-69. Professor Huntington credits the "American Creed" moniker to GUNNAR
MYRDAL, THE AMERICAN DILEMMA (1944).
47. Pp. 81-106. Peter Brimelow also has forcefully made the cultural argument for
immigration restrictions, see BRIMELOW, supra note 28, at 178-90. For criticism, see Peter H.
Schuck, Alien Rumination, 105 YALE L.J. 1963, 1987-95 (1996) (book review).
48. Pp. 204-13. See Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46
EMORY L.J. 1411 (1997).
49. See infra text accompanying notes 66-83.
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(Vol. 103:1347
In places, Professor Huntington curiously emphasizes the positive
impacts of wars, which helped integrate immigrants into society and
encourage the development of a strong national identity (pp. 197-98).
He revels in a war - and indirectly reveals how Spanish has
influenced popular culture in the United States - that is rarely
discussed because many consider it a national embarrassment: " [t]he
Spanish-American War was a nationalist fiesta, extending American
presence in East Asia, and adding significantly to the budding colonial
empire. "50 Professor Huntington also seems to praise use of the
immigration laws to limit racial diversity, such as the national origins
quota system enacted in 1924 (almost universally criticized by serious
students of immigration legal history)51 and views them as a positive
aspect of U.S. history (pp. 57-58).
One of the conundrums facing proponents of immigrant
assimilation is how to deal with the millions of undocumented
immigrants who live in the United States.52 Undocumented immigrants
live and work in this society but are denied basic rights of
membership, thus living in a sort of legal never-never land.53 The
question whether, and if so how, to integrate undocumented
immigrants into U.S. society confounds policymakers. In 1986, an
amnesty program offered legal-resident status to millions of
undocumented immigrants.54 Proposals have been on the table
for years since then to again regularize the status of
undocumented immigrants.55
Profe ssor Huntington rails against undocumented immigration:
"Illegal immigration is . . . a threat to America's societal security. The
50. P. 123 (emphasis added). See, e.g., Pedro A. Malavet, Puerto Rico: Cultural Nation,
American Colony, 6 MICH. J. RACE & L. 1, 21-32 (2000); Ediberto Roman & Theron
Simmons, Membership Denied: Subordination and Subjugation Under United States
Expansionism, 39 SAN DIEGO L. REV. 437, 448-63 (2002); Sylvia R. Lazos Vargas, History,
Legal Scholarship, and LatCrit Theory: The Case of Racial Transformations Circa the
Spanish American War, 1896-1900, 78 DENV. U. L. REV. 921 (2001).
51. See supra text accompanying note 35.
52. P. 225. See supra text accompanying note 22.
53. See Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the
Undocumented Worker Under United States Law, 1988 WIS. L. RE V. 955.
54. Pp. 218, 225. See Immigration Reform and Control Act, Pub. L. No. 99-603 §§ 20104, 100 Stat. 3359, 3394-341 1 (1986) (codified at 8 U.S.C. § 1255a (2004)); see also STEPHEN
H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 607-10 (3d ed. 2002)
(discussing amnesty program).
55. See Harold Meyerson, Bush's Retreat on Immigration Reform, WASH. POST, July 21,
2004, at A19. The issue arose in the 2004 presidential campaign. See Mark Z. Barabak &
Michael Finnegan, Kerry and Bush Wrap Up Debates with New Issues, Familiar Topics, L.A.
TIMES, Oct. 14, 2004, at Al (reporting on discussion of immigration in Presidential debate
between President Bush and Senator John Kerry on the issues of illegal immigration, guest
workers, and amnesty).
May 2005]
Immigration and National Identity
1361
economic and political forces generating this threat are immense and
unrelenting. Nothing comparable has occurred previously in the
American experience" (pp. 225-26). In a serious omission, however, he
fails to offer much in the way of policy reform. If one cannot close the
borders, the question is how to promote assimilation of, and the
formation of a cohesive national identity among, millions of
undocumented immigrants. The Supreme Court has vacillated on this
point, at times affording rights to the undocumented, and thus treating
them as community members, while at other times denying them
legal protections.56
Importantly, Who Are We? views assimilation as a positive,
without much attention paid to the human costs of the past
assimilation campaigns. Professor Huntington approaches the process
in an antiseptic fashion, with little, if any, sensitivity to the feelings of,
or empathy for, the people affected by the process.57 By so doing, the
book discusses Americanizing the immigrant through rose-colored
glasses (pp. 131-37). This is another serious omission but consistent
with Professor Huntington's general view that the ends of protecting
national identity justifies the means, whatever the individual costs.
As all of this suggests, Professor Huntington unquestionably is an
ardent assimilationist. To Professor Huntington, however, assimilation
has been replaced in the United States by multiculturalism, and it is
multiculturalism that he fervently believes is destroying the nation he
loves: " [t]he deconstructionists promoted programs to enhance
the status and influence of subnational racial, ethnic, and cultural
groups" (p. 142).
As this critique reveals, Professor Huntington's analysis of
immigration is about much more than immigrants; it touches on civil
rights of all racial minorities. Affirmative action, to Professor
Huntington, is one of the costs of multiculturalism (pp. 148-57). The
loss of English is another.58 Because multiculturalism challenges the
nation's core Anglo-Saxon-protestant culture, it is a danger to the very
existence of the United States (pp 171-77).
56. Compare Plyler v. Doe, 457 U.S. 202 ( 1982) (invalidating Texas law prohibiting
undocumented children from attending public schools) with Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137 (2002) (holding that undocumented immigrants cannot recover
backpay for employer's violation of federal labor law).
57. For analysis of the human costs, see Johnson, "Melting Pot'', supra note 15, at 126970.
58. Pp. 158-170. Efforts to coerce English language use, such as those suggested by
Professor Huntington, have a long history in the United States. See Juan F. Perea,
Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and
Official English, 77 MINN. L. REV. 269 (1992).
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[Vol. 103:1347
Professor Huntington's analysis demonstrates the serious tensions
between assimilation and multiculturalism. As Professor George
Martinez has observed, " [a]ssimilationism can be thought of as the
mirror image of multiculturalism."59 Endorsing assimilation in its
classic form, Professor Huntington would require adoption of the
dominant culture (and he makes it clear that he considers "American"
culture to be superior to all others), rejection of race or ethnic
consciousness, and repudiation of the equal value of cultures.
Assimilation is an obligation imposed on all immigrants, with the
expectation that they assimilate as white immigrants did in the past;
Professor Huntington fails to acknowledge that this is not as easily
realized by people of color, who account for more than eighty percent
of the immigrants to the United States today.60
Consequently, Professor Huntington's concern about national
identity is not limited to immigration. At bottom, Professor
Huntington is worried about the assimilation of all people of color citizens and noncitizens alike - into the mainstream. His concerns
with affirmative action, multiculturalism, and language belie a more
limited concern with immigration.
The nation had a more coherent national identity in a time when
minorities were subordinated in an era of Jim Crow and other
unforgiving assimilationist measures. Professor Huntington seems to
long for those days, while paying little attention to the harsh
subordination of minority communities that created the foundation for
that unity.
The law of numbers strongly militates against Professor
Huntington's call for a return to the days of old. The end of racially
restrictive immigration and nationality laws have contributed to
growing diversity and larger communities to support people of color.
Modern civil-rights sensibilities condemn the restrictionist and
coercive assimilationist measures of the past. These developments
require new approaches to address the important changes and tensions
that arise.
59. George A. Martinez, Latinos, Assimilation and the Law: A Philosophical
Perspective, 20 CHICANO-LATINO L. REV. 1, 6 (1999).
60. See Sylvia R. Lazos Vargas, Deconstructing Homo[geneous} Americanus: The White
Ethnic Immigrant Narrative and Its Exclusionary Effect, 72 TuL. L. REV. 1493 (1998). For a
philosophical analysis of the relationship between assimilation and multiculturalism, and the
negative impacts of mandated assimilation on Latina/os, see Martinez, supra note 59; see also
Enid Trucios-Haynes, The Legacy of Racially Restrictive Immigration Laws and Policies and
the Construction of the American National Identity, 76 OR. L. REV. 369 (1997) (analyzing
similar issues).
May 2005]
Immigration and National Identity
1.
1363
Race and Immigration
One of the curious aspects of Who Are We? is that Professor
Huntington acknowledges the atrocities committed against African
Americans, Latinos, Asians, and other groups throughout U.S. history
(p. 49), but, in remembering the halcyon days when the nation
embraced a cohesive national identity, he assumes away the existence
of the groups who were denied basic membership into U.S. society. He
also fails to mention the complex relationship between the cohesive
national identity and the subordination of racial minorities.
For example, in looking at the founding of the nation, Professor
Huntington writes that "[e]xcluding blacks, America was a highly
homogeneous society in terms of race, national origin, and religion"
(p. 44). The failure to acknowledge the truth is startling. African
Americans were enslaved, segregated, and terrorized, making them
virtually invisible. Other groups existed and were similarly suppressed.
Latina/as, many whom joined this society in 1848 with the U.S.
conquest of the Southwest, were rendered invisible by assimilation
pressures, segregated in public schools and accommodations, and were
nowhere to be found in American social life until the 1960s.61 For over
a century, Asian Americans were kept in check by restrictive
immigration laws, anti-Asian domestic laws, and, at times, violence.62
Professor Huntington fails to address the fact that the subord­
ination of racial minorities may well have facilitated a cohesive
national identity.
It is much easier to ensure a unified national identity when a
society is not multiracial and multicultural. As the world sadly
watched, the former Yugoslavia exploded in unspeakable bloodshed
after its failure to address and manage cleavages caused by ethnic and
religious difference. Professor Huntington does not address the
difficult question of how a national identity can be successfully forged
in a multicultural nation like the United States, in which civil rights
and equality are fundamental values. Rather, he seems to advocate a
return to an idyllic racially and culturally homogeneous nation.
Although offering little direction about what steps to take,
Professor Huntington invokes the specter of racial violence, in hopes
of prodding the nation to act and states that "Americans [feel]
passionate about race and ethnicity" (p. 53). In his restrictionist book
Alien Nation, Peter Brimelow contended that immigration undermines
the nation's "need for homogeneity"63 and that "the American nation
61. See Juan F. Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L.
REV. 965 (1995).
62. See infra text accompanying notes 92-121.
63. BRIMELOW, supra note 28, at 232.
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[Vol. 103:1347
has always had a specific ethnic core. And that core has been white."64
More subtle in approach, Professor Huntington requires the reader to
connect the dots. He mentions that anti-immigrant, anti-minority
movements are a possible response to the changing racial
demographics of the nation: "[w]hite nativist movements are likely to
include people with differing priorities concerning racial balance,
'white' culture, immigration, racial preferences, language, and other
issues" (p. 312) . The possible reaction of whites is not just directed at
immigrants, however: "If blacks and Hispanics organize and lobby for
special government-sponsored privileges, why not whites? If the
National Association for the Advancement of Colored People and La
Raza are legitimate organizations, why not a national organization to
promote white interests?" (p. 314).
The growth of nativist movements has been well-documented.65
However, this negative reaction to immigrants is in no way the fault of
immigrants. Should they be punished for that reaction? One could
answer in the affirmative, contending that it is essential to the security
of the nation. Such an argument, however, would need considerably
more justification than that offered by Professor Huntington.
One finishes Who Are We? wondering what to take away. It seems
that Professor Huntington is contending that the heterogeneity of the
United States is an issue that we should address to ensure that the
nation does not end up like the former Yugoslavia. He, however,
offers fe w answers to how one might address such diversity in a nation
that has undergone a civil rights revolution and seems unwilling to
discard its fundamental commitment to freedom and equality.
2.
Immigration from Mexico
Chapter Nine of Who are We?, titled "Mexican Immigration and
Hispanization" (pp. 221-56), begins with the conclusion that " [i]n the
late twentieth century, developments occurred that, if continued,
could change America into a culturally bifurcated Anglo-Hispanic
society with two national languages" (p. 221). Professor Huntington
expresses fear over the possible "reconquista" (reconquest) of the
Southwest and the territory ceded by Mexico to the United States at
the end of the U.S./Mexican War in 1848.66 To reinforce those fears, he
64. Id. at 10.
65. Pp. 309-316. See, e.g., CAROL M. SWAIN, THE NEW WHITE NATIONALISM IN
AMERICA: ITS CHALLENGE TO INTEGRATION (2002).
66. P. 221 . For critical analysis of the treaty that ended that war, see THE LEGACY OF
THE MEXICAN & SPANISH AMERICAN WARS: LEGAL, LITERARY, AND HISTORICAL
PERSPECTIVES (Gary D. Keller & Cordelia Candelaria eds., 2000); Symposium,
Understanding the Treaty of Guadalupe Hidalgo on Its 150th Anniversary, 5 Sw. J. L. TRADE
AM. 1 (1998).
May 2005]
Immigration and National Identity
1365
relies on the work of a professor whose uncited work apparently
suggests that the Southwest may join with northern Mexico to form a
new nation by 2080.67
This separatist vision is little more than a red herring. Virtually no
one truly believes that a separate nation will emerge from the
Southwest, although Chicana/o Studies activists may talk of the
mythical Aztlan as part of the re-emergence of Chicana/os. More
realistically, Professor Huntington's true fear is the development of a
strong Latina/o identity in certain regions of the country, such as
Miami (pp. 244-51). In so doing, he does not recognize the emerging
literature on segmented assimilation, that is, the slow assimilation
facilitated by initial settlement of immigrants in supportive immigrant
communities.68 Nor does Professor Huntington recognize that
divisions among Latina/os, including but not limited to conflict
between immigrants from Mexico and established Mexican Americans
in the United States,69 make an alliance to "reconquer" the Southwest
highly unlikely.
Professor Huntington views Mexican immigration as particularly
dangerous because of the proximity of Mexico to the United States,
the number of immigrants - legal and undocumented - from Mexico
in this country, the regional concentration of Mexican immigrants in
the Southwest, the persistence of high levels of immigration from
Mexico, and the historical claim of persons from Mexico to U.S.
territory.70 He presents some data supporting this proposition, but
little of the existing data to the contrary.71 His one-sided depiction of
67. P. 246. See also BUCHANAN, supra note 26, at 123-46 (making a similar argument in
a chapter entitled "La Reconquista"). Professor Huntington attributes the prediction to
Professor Charles Truxillo of the University of New Mexico (p. 50), but the endnotes do not
cite to any of Professor Truxillo's scholarship. For a rebuttal to the claim that the United
States will soon become a bilingual Spanish/English nation, see ALBA & NEE, supra note 12,
at 225-29.
68. See Alejandro Portes & Min Zhou, The New Second Generation: Segmented
Assimilation and Its Variants, 64 ANNALS AM. ACAD. POL. & Soc. SCI. 74 (1993); Ruben G.
Rumbaut, The Crucible Within: Ethnic Identity, Self-Esteem, and Segmented Assimilation
Among Children of Immigrants, 28 lNT'L MIGRATION REV. 748 ( 1994); see also Marcelo M .
Suarez-Orozco, Everything You Ever Wanted to Know About Assimilation But Were Afraid
to Ask, 129 DAEDALUS 1 (2000) (offering a sophisticated view of immigrant assimilation,
including observation that immigrants of color face impediments to assimilation in the
United States). See generally ALEJANDRO PORTES & RUBEN RUMBAUT, LEGACIES: THE
STUDY OF THE IMMIGRANT SECOND GENERATION (2001) (analyzing assimilation of second
generation immigrants).
69. See GUTIERREZ, supra note 15; Kevin R. Johnson, Immigration and Latino Identity,
19 CHICANO-LATINO L. REV. 197, 201-06 (1998).
70. Pp. 221-30. Like Peter Brimelow, see BRIMELOW, supra note 28, at 75, 215, 270,
Professor Huntington does not express similar fears with immigration from Asia (pp. 18788).
71. See supra note 15 (citing authorities).
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[Vol. 103:1347
the evidence suggests that Mexican assimilation lags in English­
language acquisition, educational attainment, occupation and income,
and naturalization (pp. 230-43).
Debatable on many levels, Professor Huntington's "failure to
assimilate" claim fails to appreciate the complexities of the
measurement of assimilation.72 Consider one example: in making the
case that Mexican immigrants fail to assimilate, Professor Huntington
cites dated statistical data about the low naturalization rates of
Mexican immigrants (pp. 238-39) . He does not squarely address the
increase in naturalization rates among Mexican immigrants in the
1990s; they naturalized because they felt under attack as anti­
immigrant laws were enacted and undocumented immigration and
immigrants became a heated and divisive political issue.73 There is
much that Professor Huntington could discuss on this score. A careful
academic analysis might consider, for example, whether the uptick in
naturalization rates is in fact a sign of increasing Mexican immigrant
integration in American social life .74
In a part of the book not focusing on Mexican immigrants,
Professor Huntington notes increasing naturalization rates; he
reasonably asks whether it is advisable for immigrants to naturalize to
avoid removal from the country, ensure access to benefits, and to be
able to vote (pp. 218-19). Some observers might contend that the spike
in naturalization rates in the 1 990s was naturalization out of fe ar
rather than out of true allegiance to the United States. This is an
important issue well worth thorough analysis, but one about which
Professor Huntington fails to fully investigate.
Ultimately, Professor Huntington suggests that the problems of
immigration would miraculously end with the dramatic reduction of
immigration from Mexico (p. 243). With such reductions, debates over
undocumented immigration, bilingual education, and assimilation
presumably would simmer down. The implicit assumption is that this
"silver bullet" is a realistic possibility when, from all appearances,
migration appears to be a fact of life in the modern world and
migration from Mexico to the United States has deep and enduring
roots in both nations.75
72. See supra text accompanying notes 12-18.
73. See Kevin R. Johnson, Latina/as and the Political Process: The Need for Critical
Inquiry, 81 OR. L. REV. 917, 930-31 (2002) [hereinafter Johnson, Latina/as and the Political
Process].
74. For analysis of the growing Latina/o naturalization rate, see Louis DeSipio, The
Pressures ofPerpetual Promise: Latinos and Politics, 1960-2003, in THE COLUMBIA HISTORY
OF LATINOS IN THE UNITED STATES SINCE 1960, at 421, 433-37 (DAVID G. GUTIERREZ ed.,
2004).
75. See supra text accompanying note 22.
May 2005]
Immigration and National Identity
1367
To complicate matters, Professor Huntington acknowledges that
the Mexican government has interests in its emigrants remaining in
the United States and in opening up immigration to this country (pp.
281-82). Why this is a "problem" is not clear. Perhaps the claim is that
the United States may feel pressured to act in a way contrary to
national interests.
This, of course, raises the global question: is immigration bad for
the United States? Professor Huntington answers in the affirmative by
focusing on its allegedly negative impact on the formation of a
national identity but, among other things, he wholly ignores the
economic arguments for freer immigration.76 Many observers credit
immigrant labor for contributing positively to the economic boom of
the 1990s.77 Immigrant labor also appears necessary for future
economic growth.78 This again is an issue that warrants further
consideration and analysis.79
In our estimation, Professor Huntington seriously overstates the
costs of Mexican immigration to the United States and wholly ignores
its benefits. In addition, the alarmist tone of Who Are We?
although
relatively tame compared to some of the contemporary restrictionist
literature80 - is not likely to contribute to the dialogue necessary to
address the important issue of immigration between Mexico and the
United States. This impact is demonstrated by the polarizing impacts
of the chapter on Mexican immigrants published in Foreign Policy.81
Nor does Professor Huntington address the human costs of
immigration enforcement measures on Mexican immigrants. Mexican
-
76. See, e.g., JULIAN L. SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION (2d
ed. 1999); Howard F. Chang, Liberalized Immigration as Free Trade: Economic Welfare and
the Optimal Immigration Policy, 145 U. PA. L. REV. 1 147 (1997); Alan 0. Sykes, The Welfare
Economics of Immigration Law: A Theoretical Survey With an Analysis of U.S. Policy, in
JUSTICE IN IMMIGRATION 158 (Warren F. Schwartz ed., 1995). For economic arguments for
certain immigration restrictions, see supra note 30 (citing authorities).
77. See Elise Brozovich, Prospects for Democratic Change: Non-Citizen Suffrage in
America, 23 HAMLINE J. PUB. L. & POL'Y 403 (2002); James H. Johnson, Jr., U.S.
Immigration Reform, Homeland Security, and Global Economic Competitiveness in the
Aftermath of the September I I, 2001 Terrorist Attacks, 27 N.C. J. INT'L L. & COM. REG. 419,
436-38 (2002).
78. Chairman of the Federal Reserve Board Allen Greenspan has observed that greater
immigration might help maintain the size of the labor force, thereby reducing inflationary
pressures. See U.S. Senate Special Committee on Aging, The Aging Global Population,
Testimony
of
Allen
Greenspan
(Feb.
27,
2003),
available
at
http://federalreserve.gov/boarddocs/testimony/2003/ 20030227/default.htm.
79. For a summary of the economic arguments for freer migration, see Johnson, Open
Borders?, supra note 22, at 233-43.
80. See, e.g., BRIMELOW, supra note 28; BUCHANAN, supra note 26; HANSON, supra
note 25; MALKIN, INVASION, supra note 27.
81. See supra text accompanying notes 41-42.
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immigrants have been subject to extreme immigration policies for
decades. The federal government made a concerted effort to regulate
the flow of immigrants well before September 11. Border operations
have resulted in thousands of immigrants dying as they attempted to
journey to the United States across deserts and mountains.82 The
ongoing tragedy is difficult to fathom, with the personal accounts of
the death and despair nothing less than heart-wrenching.83
II.
NATIVISM REDUX
The United States has a lengthy, and at times shameful, nativist
history.84 Restrictionist measures such as the Chinese exclusion laws,
national origins quota system, and sporadic deportation campaigns are
monuments to times when anti-immigrant sentiment dominated the
political process.85 Few modern defenders attempt to justify these
aspects of U.S. immigration history, which are difficult to square with
the nation's stated commitment to equality under law.
Besides policies designed to limit immigration from certain
nations, the United States has attempted to coerce immigrants and
people of color to assimilate into the mainstream and adopt
"American" ways. Such measures were much easier to enforce in a
time when domestic minorities were subordinated, powerless, and
segregation was the norm. The rise of a civil rights consciousness
changed everything. Today, forced assimilation of immigrants would
be much more difficult to require given the nation's civil rights
sensibilities. Consequently, Profe ssor Huntington's suggestion that the
nation should revisit past measures designed to ensure the cohesive
national identity of the past would be extremely difficult to recreate in
modern times.
Professor Huntington does not attempt to calm possible concern
with his suggested proposals by addressing the excesses of the past,
such as the "crusade for Americanization" in the World War I period86
or the now-reviled national origins quota system, which was designed
to dramatically reduce southern and eastern European immigration to
82. See, e.g. , Wayne A. Cornelius, Death at the Border: Efficacy and Unintended
Consequences of US Immigration Control Policy, 27 POPULATION & DEV. REV. 661 (2001);
Karl Eschbach et al., Death at the Border, 33 INTERNATIONAL MIGRATION REV. 430 (1999);
Bill Ong Hing, The Dark Side of Operation Gatekeeper, 7 U.C. DAVIS J. INT'L L. & POL'Y
121 (2001).
83. See, e.g. , KEN ELLINGWOOD, HARD LINE: LIFE AND DEATH ON THE U.S.-MEXICO
BORDER (2004); LUIS ALBERTO URREA, THE DEVIL'S HIGHWAY: A TRUE STORY (2004).
84. See supra note 3 (citing authorities).
85. See supra text accompanying notes 34-35.
86. HIGHAM, supra note 3, at 234-63 (analyzing this period of enforced conformity).
May 2005]
Immigration and National Identity
1369
the United States.s7 Professor Huntington also fails to consider the
human and civil rights costs of less dramatic restrictionist and
assimilationist measures. He apparently is of the view that it is
"patriotic" to protect the nation, the principle at the core of Who Are
We?, rather than worry over the people - including their civil
rights and feelings of belonging - affected by U.S. immigration law
and policy.
Part of this nation's identity has always rested on the respect for
fundamental individual rights. That commitment has been placed in
question throughout U.S. history by the nation's immigration policies.
Most recently, the harshness of the anti-terrorism policies after
September 1 1 dramatically impacted immigrants; Muslims and Arab
communities were under siege and suffered hate violence.ss
Other immigrant groups also suffered from the anti-immigrant
ripple effects of the "war on terror," with deportation of Mexican
immigrants increasing after immigration reforms in 1996 and
escalating after September ll.s9 Nor is this something that only
emerged after that fateful day. The long term detention of immigrants
has gone on for many years, with little attention paid to its impact on
immigrants and immigrant communities or the flagrant violation of
basic constitutional rights.90 "Criminal aliens" - with the vast majority
from Mexico and Central America - have been detained and
deported in record numbers since enactment of 1996 immigration
reforms, which the U.S. government interpreted and enforced with
great vigor and little regard for immigrants' rights.91
87. See id. at 300-30; supra text accompanying notes 34-35.
88. See supra text accompanying notes 37-39; Bill Ong Hing, Vigilante Racism: The De­
Americanization of Immigrant America, 7 MICH. J. RACE & L. 441 (2002); Thomas W. Joo,
Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race
Before and After September 11, 34 COLUM. HUM. RTS. L. REV. 1 (2002).
89. See, e.g. , Steven W. Bender, Sight, Sound, and Stereotype: The War on Terrorism and
Its Consequences for Latinas/as, 81 OR. L. REV. 1 153 (2002); Kevin R. Johnson, September
11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV. 849
(2003) [Johnson, September 11 and Mexican Immigrants]; see also Michael A. Olivas, The
War on Terrorism Touches the Ivory Tower - Colleges and Universities After September 11:
An Introduction, 30 J.C. & U.L. 233 (2004) (analyzing impacts of new reporting requirements
on foreign students and scholars).
90. For a chilling account of the use and abuse of detention of noncitizens, see MARK
Dow, AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS (2004).
91. See, e.g., Daniel Kanstroom, Deportation, Social Control and Punishment: Some
Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1890 (2000); Teresa
A. Miller, Citizenship & Severity: Recent Immigration Reform and the New Penology, 17
GEO. lMMIGR. L.J. 611 (2003); Nancy Morawetz, Understanding the Impact of the 1996
Deportation Laws and the Limited Scope of Proposed Reforms, 1 13 HARV. L. REV. 1936
(2000).
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Two painful episodes in U.S. history exemplify the strong negative
reactions to racially different immigrants. Together, the two chapters
demonstrate the dangers of exclusion and coerced assimilation. Such
lessons are not reflected in Who Are We?
A.
The Exclusion of " Unassimilable" and " Un-American " Asian
Immigrants
Examining the development of exclusion laws directed first at
Chinese and later at all Asian immigrants reveals a sordid tale of
racism and xenophobia that demonstrates the extremes to which the
nation has gone to keep out groups that are perceived as not true
Americans because they fail to conform to the prevailing image of the
national identity, and cannot assimilate into that image.92 For example,
much of the resentment toward the Chinese in the 1800s was sustained
by a need to preserve "racial purity" and "Western civilization. "93
And, in denying naturalization rights to an immigrant from India, the
Supreme Court noted:
The children of English, French, German, Italian, Scandinavian, and
other Europe parentage, quickly merge into the mass of our population
and lose the distinctive hallmarks of their European origin. On the other
hand, it cannot be doubted that the children born in this country of
Hindu parents would retain indefinitely the clear evidence of their
ancestry. It is very far from our thought to suggest the slightest question
of racial superiority or inferiority. What we suggest is merely racial
difference, and it is of such character and extent that the great body of our
94
people instinctively recognize it and reject the thought of assimilation.
At least initially, the United States welcomed immigrants from
China.95 The simultaneous opening of both China and the American
West, along with the discovery of gold in California in 1848, led to a
growing demand for Chinese labor. Chinese were actively recruited to
fill needs in railroad construction, laundries, and domestic service.96
With the expulsion of many Latina/os due to a discriminatory foreign
miners tax, the Chinese stood out as the largest non-Anglo group in
California, and in the West the full weight of prejudice fell upon
them.97 Eventually the Chinese fell victim to physical violence
92. See generally HING, To BE AN AMERICAN, supra note 15 (contending that
conceptions of national identity must change with an increasingly multicultural United
States).
93. ROGER DANIELS, THE POLITICS OF PREJUDICE: THE ANTI-JAPANESE MOVEMENT
IN CALIFORNIA AND THE STRUGGLE FOR JAPANESE EXCLUSION 19 (1962).
94. United States v. Thind, 261 U .S. 204, 215 (1923) (emphasis added).
95. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 20.
96. See id.
97. See MARY ROBERTS COOLIDGE, CHINESE IMMIGRATION 25 (1969).
May 2005)
Immigration and National Identity
1371
and the enactment of local ordinances that made their lives
extremely difficult. 98
Histories of federal exclusion policies directed at Asians generally
begin with the Chinese Exclusion Act of 1882, to the neglect of earlier
federal laws (as well as the effect of local efforts) that discouraged
immigration. In 1870, Congress refused to allow Chinese immigrants
to naturalize even though citizenship was extended to African
Americans.99 Reacting to law enforcement claims that Chinese women
were being imported for prostitution, Congress in 1875 passed
legislation prohibiting their importation for immoral purposes. 1 00 The
federal government denied admission to a group of Chinese women
on the ground that they were "lewd," an action overturned by the
Supreme Court.101 But the zealous enforcement of the statute, known
as the Page Law, effectively barred Chinese women from the country
and further worsened an already imbalanced gender ratio in the
Chinese immigrant community.102
The clamor directed against the Chinese continued, and Congress
in 1882 enacted the Chinese Exclusion Act.103 The law excluded
laborers for ten years, and effectively shut the door on Chinese
immigration.104 It further crippled the development of the Chinese­
American community because Chinese women were defined as
laborers barred from admission to the United States; Chinese laborers
who had already immigrated therefore had no way to bring wives and
families left behind.105 The Supreme Court upheld the law,
emphasizing that if Congress "considers the presence of foreigners of
a different race in this country, who will not assimilate with us, to be
dangerous to its peace and security . . . , [Congress's] determination is
conclusive upon the judiciary."106
Like the initial wave of Chinese immigrants, Japanese laborers
were at first warmly received by employers, who were needed to
perform the strenuous labor on Hawaiian sugar plantations.107 So
98. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 21-23.
99. See id. at 23.
100. See id. ; Act of March 3, 1875, ch. 141, 18 Stat. 477 (1875).
101. See COOLIDGE, supra note 97, at 418; Chy Lung v. Freeman, 92 U.S. 275 (1875).
102. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 23
103. Act of May 6, 1882, ch. 126, 22 Stat. 58 (1882); see SALYER, supra note 3.
104. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 23-24.
105. See id. at 24.
106. Chae Chin Ping v. United States ( The Chinese Exclusion Case), 130 U.S. 581, 606
(1889) (emphasis added).
107. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 27.
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many came that the Japanese became the largest group on the islands.
Few immigrated to the mainland, so there was little political pressure
to exclude them.108 In 1869, the new immigrants were described as
"gentlemen of refinement and culture . . . [who] have brought their
wives, children, and . . . new industries among us."109 By 1894, Japan
and the United States reaffirmed their commitment to open travel,
each promising the other's citizens liberty to enter, travel, and reside
in the receiving country.11°
By the turn of the century, however, unfavorable sentiment toward
the Japanese laborers had grown.111 Japan's emergence as a major
world power meant that the United States could not restrict Japanese
immigration in the heavy-handed fashion in which it had curtailed
Chinese immigration. To minimize potential disharmony between the
two nations while retaining the initiative to control immigration,
President Roosevelt negotiated an agreement with Japan.112 Under the
so-called Gentlemen's Agreement reached in 1907 and 1908, the
Japanese government refrained from issuing travel documents to
laborers destined for the United States. In exchange for this limitation,
Japanese wives and children could be reunited with their husbands
and fathers in the United States, and the San Francisco school board
would be pressured into rescinding a segregation order.113
In addition to economic considerations,114 exclusion in part was
justified by the alleged failure of Japanese immigrants to assimilate;
like the Chinese, the Japanese came to be regarded as "undesirable
Asiatics."115 Indeed, in later justifying the internment during World
War II, the Supreme Court noted that "solidarity" among Japanese
immigrants has "in large measure prevented their assimilation as an
integral part of the white population."116
Eventually, restrictive immigration policies were enacted against
every Asian immigrant group. Asian Indians, who began entering in
the early twentieth century, managed to agitate the Asiatic Exclusion
108. See id.
109. See PETER IRONS, JUSTICE AT WAR 9 (1983).
1 10. See ROY HIDEMICHI AKAGI, JAPAN'S FOREIGN RELATIONS, 1524-1936, at 435
( 1936).
111. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 27-28.
1 12. See AKAGI, supra note 1 10, at 434-35.
113. See RAYMOND A. ESTHUS, THEODORE ROOSEVELT AND JAPAN 163-66 (1966);
CHARLES WOLLENBERG, ALL DELIBERATE SPEED: SEGREGATION AND EXCLUSION IN
CALIFORNIA'S SCHOOLS, 1955-1975, AT 66-67 (1976).
1 14. See HING, DEFINING AMERICA, supra note 2, at 53-60.
1 15. JESSE FREDERICK STEINER, THE JAPANESE INVASION: A STUDY IN THE
PSYCHOLOGY OF INTER-RACIAL CONTACTS 57 (1917).
1 16. Hirabayashi v. United States, 320 U.S. 81, 96 (1943) (footnote omitted).
May 2005]
Immigration and National Identity
1373
League. Congress responded to this continued anti-Asian clamor by
passing the Act of February 5, 1917, creating an "Asiatic barred zone,"
extending the Chinese exclusion laws to all other Asians.117 By 1946,
the United States restricted immigration from the Philippines.118 The
U.S. immigration and nationality laws barred Asians from
naturalization until 1952.119 The Asian exclusion laws remained in full
force through the end of World War II, and were not fully repealed by
Congress until 1965.120
The history of Asian exclusion demonstrates the dangers of
clinging to a homogeneous national identity, based on the alleged
failure to assimilate.121 Although acknowledging this history (p. 56),
Professor Huntington fails to account for the dangers that it suggests
exist if the nation embraces a narrow conception of national identity.
B.
The Exclusion of "Unassimilable" and "Un-American" Mexican
Immigrants
As was the case with for Asian immigrants, immigrants from
Mexico also faced a series of restrictionist immigration measures
designed to limit their presence in the United States as well as
suffering from assimilationist demands placed on them. Although his
precise prescriptions are not clear, Professor Huntington's assertions
imply the need to return to those failed policies or their equivalents.
In the twentieth century, concern with immigration from Mexico
ebbed and flowed. Immigration from Mexico during and after the
Mexican revolution sparked concerns, culminating in the creation of
the Border Patrol.122 In combination with increased border
enforcement, aggressive efforts were made to assimilate immigrants,
117. See HING, DEFINING AMERICA, supra note 2, at 31-32.
118. See id. at 35.
1 19. See, e.g. , United States v. Thind, 261 U.S. 204 (1923); Ozawa v. United States, 260
U.S. 178 (1922). See generally IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL
CONSTRUCTION OF RACE (1996) (analyzing the whiteness requirement for naturalization) .
120. See HING, DEFINING AMERICA, supra note 2, at 36-41.
121. See STEINER, supra note 115 and accompanying text. For example, in describing the
circumstances that led to the Chinese exclusion law, the Supreme Court reasoned: " [The
Chinese] remained strangers in the land, residing apart by themselves, and adhering to the
customs and usages of their own country. It seemed impossible for them to assimilate with
our people or to make any change in their habits or modes of living." The Chinese Exclusion
Case, 130 U.S. 581, 595 (1889).
122. See ALFREDO MIRANDE, GRINGO JUSTICE 107-45 (1987).
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with assimilation campaigns directed at persons of Mexican ancestry in
the 1920s.123
The campaigns, however, were not effective at integrating Mexican
immigrants into U.S. society. The Great Depression saw an upswing in
concern with Mexico and Mexican immigrants sapping limited public
jobs and benefits. With the assistance of the federal government, local
officials deported close to one million persons of Mexican ancestry,
over one-half of whom were U.S. citizens.124
Racial tensions followed during World War II, with persons of
Mexican ancestry, including many immigrants (as well as African
Americans), taking jobs in urban areas to assist in the war effort; the
"Zoot Suit" riots on the streets of Los Angeles were in fact race riots
between Anglo servicemen and Mexican Americans (along with
African Americans), which were triggered by the adoption by young
men of color of a cultural stance in opposition to the Anglo norm.125
The Bracero Program, beginning in World War II and lasting until the
1960s, allowed for Mexican guest workers to be exploited in ,U.S.
agriculture.126 In 1954, the federal government implemented
"Operation Wetback," which resulted in the removal of tens of
thousands of persons of Mexican ancestry from the United States.127
Public concern with undocumented immigration again escalated in
the 1970s and 1980s, only to reach a fever pitch in the 1990s.128
123. See GEORGE J. SANCHEZ, BECOMING MEXICAN AMERICAN 87-107 (1993); Hing,
supra note 37, at 920-23; George F. Sanchez, "Go After the Women": Americanization and
the Mexican Immigrant Woman, 1915-1929, in UNEQUAL SISTERS: A MULTICULTURAL
READER IN U.S. WOMEN'S HISTORY 250 (Ellen C. DuBois & Vicki L. Ruiz eds., 1990).
124. See generally FRANCISCO E. BALDERRAMA & RAYMOND RODRIGUEZ, DECADE
OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930s (1995) (analyzing history of
"repatriation" campaign); CAMILLE GUERIN-GONZALES, MEXICAN WORKERS AND
AMERICAN DREAMS: IMMIGRATION, REPATRIATION, AND CALIFORNIA FARM LABOR,
1900-1939 ( 1994) (same); ABRAHAM HOFFMAN, UNWANTED MEXICAN AMERICANS IN THE
GREAT DEPRESSION: REPATRIATION PRESSURES, 1929-1939 (1974) (same).
125. See generally EDWARD J. ESCOBAR, RACE, POLICE, AND THE MAKING OF A
POLITICAL IDENTITY: MEXICAN AMERICANS AND THE LOS ANGELES POLICE
DEPARTMENT, 1900-1945, at 84-90 (1999) (documenting history of riots); MAURICIO
MAZ6N, THE ZOOT-SUIT RIOTS: THE PSYCHOLOGY OF SYMBOLIC ANNIHILATION (1984)
(same); EDUARDO 0BREG6N PAGAN, MURDER AT THE SLEEPY LAGOON: ZOOT SUITS,
RACE, & RIOT JN WARTIME L.A. (2003) (same).
126. See KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM,
IMMIGRATION AND THE 1.N.S. (1992); ERNEST GALARZA, MERCHANTS OF LABOR: THE
MEXICAN BRACERO STORY (1964).
127. See generally JUAN RAMON GARciA, OPERATION WETBACK: THE MASS
DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954 (1980) (analyzing federal
government's deportation campaign directed at immigrants from Mexico).
128. See generally Kevin R. Johnson, The New Nativism: Something Old, Something
New, Something Borrowed, Something Blue, in IMMIGRANTS OUT! THE NEW NATIVISM
AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES 165, 171-73 (Juan F. Perea
May 2005]
Immigration and National Identity
1375
Immigration from Mexico and the perceived refusal of Mexican
immigrants to assimilate often triggered a negative public reaction to
immigration.129 In the early 1990s, Mexican immigrants were attacked
for sapping public benefits, taking jobs, committing crime, speaking
Spanish, living in separate communities, and similar alleged
misconduct. 1 30 Against a backdrop of racial antipathy, voters
overwhelmingly passed California's infamous Proposition 187, which
was designed to reduce and control immigration from Mexico by,
among other things, denying undocumented children access to a public
school education and making undocumented immigrants ineligible for
public benefits.131
Past assimilation efforts failed to fully incorporate persons of
Mexican ancestry into the United States. Still, the policies pursued to
compel assimilation of persons of Mexican ancestry - U.S. citizens as
well as immigrants - were much easier to develop and implement in a
time when the sense of racial and cultural identity of minority groups
was more diluted than today. The emergence of a positive Chicana/o
identity in the 1 960s132 makes the adoption of stringent assimilationist
measures likely to meet stiff resistance in modem times.
Governmental policies seeking to mandate assimilation were easier in
a time when racial and ethnic pride was nonexistent.133
Indeed, the assimilationist policies of the past had a sort of
boomerang effect. Coerced assimilation helped forge a Latina/o
identity in the United States. Language regulation, for example, is an
issue of Latina/o concern even though most Latina/os in the United
States speak English; the language wars represent a venue for
ed., 1997) (analyzing treatment of Mexican immigrants by U.S. Supreme Court during this
period).
129. See supra note 123 (citing authorities).
130. See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of
Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1519-41 (1995).
131. See Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and
California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70
WASH. L. REV. 629 (1995); Ruben J. Garcia, Comment, Critical Race Theory and
Proposition 187: The Racial Politics of Immigration Law, 17 CHICANO-LATINO L. REV. 1 18
(1995).
132. See generally IGNACIO M. GARCIA, CHICANISMO: THE FORGING OF A MILITANT
ETHOS AMONG MEXICAN AMERICANS (1997) (analyzing the emergence of the Chicana/o
movement).
133. See generally RODOLFO F. ACUNA, ANYTHING BUT MEXICAN: CHICANOS IN
CONTEMPORARY Los ANGELES (1996) (analyzing critically efforts by Mexican Americans
to embrace Spanish as opposed to Mexican identity in greater Los Angeles in the twentieth
century).
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Michigan Law Review
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Latina/os to fight for status with Anglos in the United States.134 The
debate over immigration has many of the same qualities.135 As this
suggests, assimilation strategies that are not voluntary may promote
the factionalism that Professor Huntington hopes to remedy.136
C.
Conclusion
In the past, efforts to compel assimilation of Asians and Mexicans
proved effective at keeping those communities invisible and
promoting the white national identity embraced by Professor
Huntington. The policies, however, did not assimilate these groups
into mainstream U.S. society.
Moreover, the strong policies of coerced assimilation and national
conformity occurred at a time when there was little respect for the
rights of racial minorities and indeed when these groups were
considered by white-Anglo society as racially, culturally, and
otherwise inferior. Times have changed. Put differently, restrictionist
Madison Grant could write about immigration in 1916 and race in a
way that Samuel Huntington could not in 2004. Now that the civil
rights genie is out of the bottle, it is not nearly as easy to embrace
racially exclusionary immigration policies, stifle cultural dissent, and
force conformity with the white-Anglo-Saxon-Protestant norm.
III.
WHAT WE
CAN LEA RN FROM THE RECURRING NATIVIST
OUTBURSTS, OR WHAT THE PUBLIC DEBATE OVER IMMIGRATION IS
REALLY ABOUT
Professor Huntington is entirely correct in identifying immigration,
national identity, race, and civil rights as interrelated. Although this
insight may seem obvious, much discussion of immigration law and
policy proceeds without much consideration of the racial impacts of
the law and its enforcement. For example, although it is Mexican
immigrants who are primarily affected by the heightened enforcement
measures implemented along the United States' southern border with
Mexico, the racially disparate impacts of border enforcement are
rarely discussed: 137 Asian immigrants also have been, and are being,
134. See Rachel F. Moran, Bilingual Education as a Status Conflict, 75 CAL. L. REV. 321
(1987).
135. See Aleinikoff & Rumbaut, supra note 15, at 14-21.
136. See infra text accompanying notes 189-191.
137. See supra text accompanying notes 82-83.
Immigration and National Identity
May 2005]
1377
adversely affected by the immigration laws,138 but this is often ignored
because the modem immigration laws are facially neutral.
As Professor Huntington understands, immigration has
implications for national identity. However, we disagree with his
narrow conception of American national identity. We also disagree
with his suggested policy reforms, in large part because we do not see
the problem as he does and because we believe that the drastic
reductions in immigration are simply not feasible in the modem
United States. This part of this essay analyzes the civil rights
implications of Professor Huntington's view of national identity and
further suggests policy options that might accomplish some of his
stated goals.
A.
The Dangers of a Narrow National Identity
Professor Huntington is a man in search of a concept that fits his
vision of a true American. The foreword of Who Are We? outlines
three central arguments:
1) The "salience of their national identity for Americans
has varied throughout history . . . . So long as
Americans see their nation endangered, they are likely
to have a high sense of identity with it. If their
perception of threat fades, their identities could again
take precedence over national identity" (p. xv).
2) The "American Creed," as initially formulated by
Thomas Jefferson . . . is widely viewed as the crucial
defining element of American identity. . . [and] the
product of the distinct Anglo-Protestant culture of the
founding settlers of America in the seventeenth and
eighteenth centuries[.] Key elements of that culture
include: the English language; Christianity; religious
commitment; English concepts of the rule of law, the
responsibility of rulers, and the rights of individuals;
and dissenting Protestant values of individualism, the
work ethic, and the belief that humans have the ability
and the duty to try to create a heaven on earth (pp. xv­
xvi).
3) Anglo-Protestant culture has been central to American
identities for three centuries . . . . In the late twentieth
138. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6; Jan C. Ting,
"Other Than a Chinaman ": How U.S. Immigration Law Resulted From and Still Reflects a
Policy of Excluding and Restricting Asian Immigration, 4 TEMP. POL. & CJV. RTS. L. REV
301 (1995).
.
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century, however, the salience and substance of this
culture were challenged by a new wave of immigrants
from Latin America and Asia, the popularity in
intellectual and political circles of the doctrines of
multiculturalism and diversity, the spread of Spanish as
the second American language and the Hispanization
trends in American society, the assertion of group
identities based on race, ethnicity, and gender, the
impact of diasporas and their homeland governments,
and the growing commitment of elites to cosmopolitan
and transnational identities (p. xvi).
At bottom, Professor Huntington fears the challenge to his Anglo­
Protestant, English-language vision of American identity. He is not
satisfied with an American Creed that is based on principles of
"liberty, equality, democracy, civil rights, nondiscrimination, rule of
law,'' which he considers to be merely "markers of how to organize
a society" (p. 338).
Some proponents of the American Creed argue that its political
principles are applicable to people everywhere. If this is the case,
however, they cannot be the only basis for distinguishing Americans
from other peoples. Democracy in various forms has spread to many
more countries. Russians, Chinese, Indians, and Indonesians who
subscribe to the Creed share something with Americans, but they do
not thereby become Americans so long as they stay in their homeland,
remain committed to that country and its culture, and identify
primarily with their fellow citizens. To Professor Huntington, they
become Americans only if they also migrate to America, participate in
U.S. social life, learn English, U.S. history, and customs, absorb
the nation's Anglo-Protestant culture, and identify primarily with
the United States (pp. 338-39).
Professor Huntington prefers the national identity that prevailed in
days of immigration when northern Europeans dominated and
immigrants assimilated into American culture.139 The fundamental
flaws of his Euro-immigrationist and cultural assimilationist positions
are apparent. The first is the flawed premise that America has a
strictly white, Christian, European heritage. The second is the
misguided claim that immigrants of color fail to acculturate.
Professor Huntington disdains multiculturalism as an attack on
European civilization and as representing anti-Western ideology (pp.
1 7 1 -73). Multiculturalism in fact challenges the premise that America
is a white, English-speaking, Western-Christian nation. Not only did
Native American tribes long pre-date the arrival of white Christians,
but the early European settlers spoke Spanish, German, Dutch,
139. See supra text accompanying notes 43-60.
May 2005]
Immigration and National Identity
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French, and Polish in addition to English.140 Before the Chinese
exclusion laws,141 about 300,000 Chinese had entered the country.142
Filipinos established a community in Louisiana as early as 1565.143
Spanish-Portuguese Jews settled in the New World in the mid-1600s.144
Mexicans have long migrated to the United States, in no small part
due to the fact the much of the Southwest was once part of Mexico.145
More than 9.5 million Africans were brought to the western
hemisphere as slaves.146 In the first decade of the twentieth century,
about 2 million Italians, 1.6 million Russians, and 800,000 Hungarians
immigrated.147 In short, the heritage of the United States does not
derive solely from people who are white, English-speaking, Christian,
and European. Nonwhite peoples have a long history in America. The
genocide of Native Americans, brutal enslavement of African
Americans, and exploitation and oppression of Asian and Latina/o
Americans, are harsh reminders of the nation's racial past.
Without assigning a racist intent to Professor Huntington,148 his
critique of immigration focuses primarily on assimilation and his
complaints that immigrants fail to absorb American culture.149 Study
after study, however, demonstrate that the vast majority of immigrants
take on cultural traits of the host community.150 Immigrants entering
the United States today learn English at the same rate as immigrant
140. See Diego Castellanos, A Polyglot Nation, in LANGUAGE LOYALTIES: A SOURCE
BOOK ON THE OFFICIAL ENGLISH CONTROVERSY 13 (James Crawford ed., 1992). For
analysis of the emergence of Anglo American cultural dominance out of this rich ethnic
diversity, as well as its demise, see ERIC P. KAUFMANN, THE RISE AND FALL OF ANGLO­
AMERICA (2004).
141. See supra text accompanying notes 92-121.
142. See HING, MAKING AND REMAKING ASIAN AMERICA, supra note 6, at 48 tbl.3.
143. See id. at 51.
144. See Castellanos, supra note 140, at 15.
145. See MIRANDE, supra note 122, at 100-16; Gerald P. Lopez, Undocumented Mexican
Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615, 641-72
(1981).
146. See JOHN HOPE FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF NEGRO
AMERICANS 59 (8th ed. 2000).
147. See U.S. DEPT. OF JUSTICE, 1990 STATISTICAL YEARBOOK OF THE IMMIGRATION
AND NATURALIZATION SERVICE 49 tbl.2 (1991).
148. See supra text accompanying note 14.
149. See supra text accompanying notes 23-83.
150. See supra notes 12, 15 (citing authorities); MARGARET S. BOONE, CAPITAL
CUBANS: REFUGEE ADAPTATION IN WASHINGTON D.C. 1 (1989); PAUL J. STRAND &
WOODROW JONES, JR., INDOCHINESE REFUGEES IN AMERICA: PROBLEMS OF
ADAPTATION AND ASSIMILATION 131 (1985); Won Moo Hurh & Kwang Chung Kim,
Adhesive Sociocultural Adaptation of Korean Immigrants in the U.S.: An Alternative Strategy
of Minority Adaptation, 18 INT'L MIGRATION REV. 188, 205 (1984).
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groups before them.151 First generation immigrants tend to learn
English and pass it on to their children, who become bilingual, with
later generations losing fluency in the mother tongue.152 By the third
generation, the original language is often lost.153 Professor
Huntington's charge that Mexican immigrants do not want to learn
English (pp. 221, 232, 253) is contradicted by the fact that Mexican
immigrants swell the waiting lists at adult English language programs
and English-as-a-Second-Language centers.154
Professor Huntington accuses the Latina/o community, in
particular, of refusing to learn English. (pp. 232, 253).155 Yet Spanish­
speaking immigrants who have been in the country for fifteen years
regularly speak English.156 They usually read English fluently within
ten years.157 About ninety-three percent of all Mexican immigrants
agree that residents of the United States should learn English.158
Although complete acculturation of all immigrants is impossible,
immigrants of all ages become acculturated to some extent. Even
before coming to the United States, immigrants have been exposed to
American culture due to its pervasiveness in the global media.159 Upon
arriving in the United States, most immigrants work, learn English,
and often strive to acquire U.S. customs. Many young Asian and
Latina/o immigrants aggressively strive to be "American." They are
eager to learn English, to get a job, to work hard; in short, they pursue
the classic American dream.160 Their aspirations are similar to the ones
that motivated Jewish, Irish, and Southern- and Eastern-European
immigrants in earlier years. Due to school attendance, interaction with
peers, and exposure to the media, the children of immigrants, even
151. See Frank Sharry, Why Immigrants Are Good for America, ORLANDO SENTINEL,
Sept. 22, 1991, at Gl.
152. See id.; Lawrence Kutner, Parent & Child, N.Y. TIMES, Nov. 19, 1992, at Cl2.
153. See Sharry, supra note 151.
154. See Pat Kossan, Rural Pupils Ace Aims, ARIZONA REPUBLIC, Sept. 9, 2002, at lA;
LaKisha Ladson, Church Bridging Language Gap: Our Redeemer Lutheran Classes Help
Meet Community Need, DALLAS MORNING NEWS, May 26, 2004, at 2P; Nancy Mitchell, New
School to A id Immigrants, ROCKY MOUNTAIN NEWS, Apr. 17, 2004, at 21A; Raul Yzaguirre,
Harsh Words Match Deeds, BALTIMORE SUN, May 14, 2004, at 17 A.
155. See supra text accompanying notes 66-83.
156. See Sharry, supra note 151; supra text accompanying notes and notes 12-15 (citing
authorities).
157. See Linda Chavez, Tequila Sunrise: The Slow But Steady Progress of Hispanic
Immigrants, POL'Y REV., Spring 1989, at 65. See generally CHAVEZ, supra note 12 (analyzing
Hispanic assimilation).
158. See Roberto Suro, Hispanic Pragmatism Seen In Survey, N.Y. TIMES, Dec. 15, 1992,
at A20.
159. See supra text accompanying note 21.
160. See, e.g., Latinos as They See Themselves, PLAIN DEALER, Dec. 17, 1992, at lOB.
May 2005]
Immigration and National Identity
1381
those who are foreign-born, generally become acculturated; these
children speak English, and their customs, habits, and values are
nearly indistinguishable from those of their peers.
Professor Huntington fails to acknowledge that a multicultural
United States provides many benefits in an increasingly
interdependent global economy. Developments the world over from Europe to Latin America to Africa, Asia, and the Middle East affect the U.S. economy. The Dow Jones, interest rates, production,
and the value of the dollar all reacted to democracy movements in
Asia and Eastern Europe, the war on terrorism and Iraq, and
economic problems in Brazil and Mexico. Europe is only one of many
regions that are vital to the U.S. economy.
Because Asia and the industrializing nations of Latin America are
new centers of economic power, bicultural and multicultural U.S.
residents will prove invaluable as American companies develop
business in these regions. Many businesses, advertising agencies, and
law firms already have recognized the benefits of taking a
multicultural approach. Some have established branches abroad, most
have invested in culture and language training for employees, and
even more have hired bicultural employees. In the age of jet travel,
the Internet, email, and fax machines, multicultural businesses are
engaged in daily transactions in Tokyo, Singapore, Hong Kong,
Manila, Beijing, Mexico City, Brasilia, and Caracas as well as London,
Paris, and Frankfurt.
A diverse work force is an advantage domestically as well. As the
racial demographics of the country evolve, shrewd business managers
make changes and innovations in response to the needs of the
changing population. In short, responding to demographic changes can
help increase profits. However, producing commercials with slogans
like "se habla espafiol" and advertising in the Asian Yellow Pages in
order to attract new business must be coupled with the cultivation of a
staff that can readily develop a rapport with the new customers. Thus,
more and more employers are coming to view diversity as a way to
expand business as well as a public relations boon.
The success of an AT&T service called Language Line, which
allows companies in the United States to communicate with their non­
English speaking customers and business contacts, illustrates the
benefits of a diverse work force.161 Through a staff of interpreters on
conference calls, Language Line allows businesses such as Whirlpool,
Lands End, Pepsi, and Gerber to communicate with customers who do
not speak English.162 As the director of communications for the service
161. See Jim Cole, Breaking the Language Barrier, S.F. EXAMINER, Apr. 18, 1993, at El.
162 See id.
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explains, "[b]usiness is beginning to appreciate there are over 30
million people in this country who prefer to use a language other than
English . . . . The U.S. business community is becoming increasingly
attuned to the fact that not every customer speaks English."163
Moreover, a diverse work place is also a more innovative work
place. For example, Burger King has implemented diversity and
multicultural training seminars for its employees while increasing the
percentage of people of color in its work force.164 There is "a growing
sentiment that diverse employee teams tend to outperform
homogeneous teams of any composition . . . . [H]omogeneous groups
may reach consensus more quickly, but often they are not as successful
in generating new ideas or solving problems, because their collective
perspective is narrower."165
Cultural pluralists correctly argue that, as in the past, the country
continues to benefit from new immigrants who, like their
predecessors, have the drive and willingness to make a better life for
themselves and their families. As a class, immigrants arguably
represent the most determined people from their sending nations.
Many have survived treacherous journeys and overcome severe
obstacles. All have had to demonstrate the courage and fortitude
needed to uproot themselves, and often their families, and wind their
way through immigration mazes and the difficulties of relocation. As a
nation, we stand to learn and to benefit from the hard work ethic of
the immigrants.
More generally, immigrants represent a potential resource for
adding to, rather than diluting, American culture. Although the
United States continues to be an innovative leader in many business,
political, scientific, and social fronts, it is not the sole source of
innovation. We should be open to new ideas from people of different
cultures who may offer better ways of approaching business
operations, protection of the environment, stress, interpersonal
relations, and education.
The ultimate benefit from interaction with those of different
cultures does not necessarily flow from learning about new
innovations, however. Rather, by learning about other cultures
through social interaction with people of other cultures, we begin to
learn more about other people. We better understand their customs,
attitudes, and values, as well as share information about our own
cultures. In that process, we begin to develop tolerance and respect for
other cultures and backgrounds.
163. Id. (quoting Director of Communications, AT&T Language Line).
164. See Lena Williams, Companies Capitalizing on Worker Diversity, N.Y. TIMES, Dec.
15, 1992, at Al.
165. Id. (quoting Managing Director, Diversity Consultants, Inc.).
May 2005]
Immigration and National Identity
1383
Professor Huntington's complaints suggest that we need new ways
of looking at what it means to be an American. Clearly, the concept of
"becoming an American" signifies different things to different people.
Recognition of these differences helps develop a respect for other
cultures and sets the groundwork for a workable multiracial society.
This groundwork can help us counter the human tendency to divide
and distinguish in binary terms of superiority and inferiority, a
tendency we must overcome in order to meet the prerequisite of
respect for diverse views in a new vision of pluralism. Concepts of
what it means to be an American must include the diversity of new
generations of Americans - foreign-born, native-born, white, and of
color - and be cognizant of the tension that accompanies diversity.
Catch phrases, like melting pot, salad bowl, or tomato soup,166 are not
particularly useful descriptions of the complex U.S. society.
Proponents of assimilation ignore the demographic realities of the
nation. According to the 2000 Census, about thirty percent of the
nation was comprised of people of color: 12.7 percent African
American; 12.6 percent Latina/o; 3.8 percent Asian American; and 0.8
percent Native American.167 According to one estimate, by the year
2050, African Americans, Asian Americans, and Latina/os will
constitute forty-seven percent of the population.168 Left to market
forces, immigrants are indeed Americanized, picking up habits,
cultural traits, values, interests, and languages of the dominant group.
However, American culture is constantly changing, and the definition
of an American is constantly redefined. As immigrants become more
"American," their native cultural traits also influence existing social
norms. Thus, just as the process of Americanization has evolved from
one of Anglo-conformity to Euro-conformity, it is evolving into a
multicultural-conformity that requires us to look at our society and
culture with a broader perspective.
The continued definition of American in Eurocentric terms is
fraught with danger. Expressions of Euro-Americanization help racists
confirm their views of racial superiority over people of color. White
supremacists feed on this sentiment and manipulate advocacy for
conformity to their benefit by finding new recruits initially attracted to
the more benign notion of strengthening the nation through unity.
Resentment of immigrants is engendered, scapegoating of people of
166. See supra text accompanying notes 46-47.
167. See U.S. Census Bureau, Projected Population of the United States, by Race
and Hispanic Origin: 2000 to 2050 (2004), available at http://www.census.gov/ipc/www/
usinterimproj/natprojtabOla.pdf (last visited Sept. 3, 2004).
168. See id.
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color becomes easier, racial and ethnic epithets remain commonplace,
and hate violence ensues.169
Assimilation is a fluid and evolving process rather than a static
one. Furthermore, immigrants' presence also influences the ongoing
evolution of American culture. As a result, the definition of what an
American is must be expanded and it must embrace differences rather
than attack them. In sum, Professor Huntington's stingy definition of
national identity fails to comport with the realities of life in the
modern U.S. society. Demographic changes have already occurred and
cannot realistically be reversed. The question is how we address the
conception of national identity in light of those changes.
B.
The Civil Rights Implications of Exclusionary Immigration
Measures
As we have seen, Professor Huntington expresses little worry
about the civil rights implications of his assimilationist prescriptionsP0
Put differently, he appears willing to sacrifice the civil rights of
minorities in the name of national cohesion. This trade off is a familiar
one to racial minorities in the United States,171 who have been subject
to discrimination throughout U.S. history.172 Immigrants often have
been subject to antipathy and blamed for economic, political, and
social problems, with their rights sacrificed for the "common" good.173
National unity often has been achieved but at the cost of equal rights
to racial minorities.
Immigration law generally has served to maintain racial "balance"
as well as to regulate the entry of groups of noncitizens deemed to be
undesirable. Race has been expressly part of the immigration laws for
much of U.S. history, with the Chinese exclusion laws, national origins
quota system, and the racial prerequisite of whiteness for
169. See supra text accompanying notes 37-39 (describing harsh treatment of Arabs and
Muslims after September 1 1).
1 70. See supra text accompanying notes 23-83.
171. Cf Michael A. Olivas, The Chronicles, My Grandfather's Stories, and Immigration
Law: The Slave Traders Chronicle as Racial History, 34 ST. LOUIS U. L.J. 425 (1990)
(describing historical episodes in which whites took actions that benefited themselves at the
expense of racial minorities).
172 See generally DMOTHY DAVIS ET AL., A READER ON RACE, CIVIL RIGHTS, AND
AMERICAN LAW: A MULTIRACIAL APPROACH (2001) (analyzing legal history of racial
discrimination in United States); KENNETH L. KARST, BELONGING TO AMERICA (1989)
(analyzing history of various groups' efforts to become fully integrated in U.S. society);
JUAN F. PEREA ET AL., RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE
AMERICA (2000) (to same effect).
173. See supra text accompanying notes 84-136 (citing authorities).
May 2005]
Immigration and National Identity
1385
naturalization in place from 1790 until 1952.174 National identity was a
primary justification for those measures, with the nation attempting to
preserve its white-Anglo-Saxon-Protestant roots.175
The triumph of the civil rights movement, and its embrace of the
antidiscrimination principle, led to the removal of expressly race­
based exclusion grounds from the immigration laws. For that reason,
the year 1965 is a watershed in immigration history, with the
elimination of the discriminatory national origins quota system.
Since 1965, without racial exclusions, many more immigrants from
Asia have come to the United States.176 This "mass migration" has
worried those like Professor Huntington concerned about maintaining
the American way of life - often couched in terms of national
identity - as well as by those concerned about immigration's impact
on labor markets and the wage scale.177
Consequently, Who Are We? can be viewed as one of a number
restrictionist responses to the changes brought by the 1965
immigration reforms. However, the civil rights revolution has shaped
Professor Huntington's arguments supporting restrictionist and
assimilationist measures, rendering his position significantly different
from those of many past restrictionists. He expressly denies reliance
on race and focuses on the culture of today's immigrants.178 This is a
distinctive improvement over the approach of the pre-1960s
restrictionists,179 which represents progress of sorts in the public
discourse over immigration.
Part of the solution suggested by Professor Huntington is to keep
out of the country the immigrants that he believes to be responsible
for causing national disunity. Of course, when it comes to his broad
policy prescriptions, we are asked to assume that immigration
restrictions and greater border enforcement can stop the flow of
immigrants to the United States. There is little evidence that such is
the case, however. This country has a long tradition of failing to
accomplish such goals through policies designed to exclude Mexicans
174. See Johnson, Race, the Immigration Laws, and Domestic Race Relations, supra note
35, at 1 120-31. See generally LOPEZ, supra note 119 (analyzing the requirement that an
immigrant be white to naturalize).
175. See Johnson, Race, the Immigration Laws, and Domestic Race Relations, supra note
35, at 1119-31.
176. See Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A
New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273 (1996).
177. See, e.g., VERNON M. BRIGGS, JR., MASS IMMIGRATION AND THE NATIONAL
INTEREST (3d ed. 2003).
178. See supra text accompanying note 14.
179. See supra note 34 (citing examples).
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from the United States.180 The public charge exclusion ground in the
U.S. immigration laws was invoked to bar entry to many Mexican
immigrants in a time when racial exclusions did not apply to
immigrants from Mexico.181 More recently, the federal government has
massively ramped up the border enforcement along the southern
border with Mexico beginning in the 1990s.182 The ineffective nature of
U.S. border enforcement - even after the tragedy of September 11,
2001 - suggests that social, economic, and political pressures have
much more impact on the immigration flow than enforcement.183
Besides being ineffective, such measures also have deleterious civil
rights consequences.184
Moreover, exclusionary measures have collateral consequences. To
reduce social tensions, efforts have been made over the course of U.S.
history to exclude Chinese, Japanese, and Mexican immigrants, as well
as those from other nations.185 Because of fears of their negative
impacts on the nation, the poor, criminals, political dissidents, women,
gays and lesbians and other groups of people have been denied access
to the United States.186 Such exclusions stigmatize and harm domestic
groups who share the same characteristics as the persons excluded.187
Consequently, even though Professor Huntington's approach may be
based on culture, it will have distinct impacts on disfavored racial
minority groups.
In defense of the United States's past cohesive national identity,
Professor Huntington thus takes us down a historical road that we do
not recall fondly - the history of exclusion under the immigration
laws of racial and political minorities, the poor, gays and lesbians,
women, criminals, and other undesirables.
It is no surprise that Professor Huntington does not dwell on
African Americans in U.S. history or the impacts of strict immigration
and assimilation policies on persons of Asian and Mexican ancestry in
the United States. 188 Human costs simply are not as important to
Professor Huntington as maintaining national unity and the United
180. See supra text accompanying notes 122-136.
181. See Johnson, Race, the Immigration Laws, and Domestic Race Relations, supra note
35, at 1519-28.
182. See supra text accompanying notes 82-83.
183. See Johnson, Open Borders?, supra note 22, at 251-52.
184. See supra text accompanying notes 84-136.
185. See Johnson, Race, the Immigration Laws, and Domestic Race Relations, supra note
35, at 1 119-47.
186. See generally KEVIN R. JOHNSON, THE "HUDDLED
IMMIGRATION AND CIVIL RI GHTS (2004) (analyzing this history).
187. See id. at 46-49.
188. See supra text accompanying notes 84-136.
MASSES"
MYTH:
May 2005]
Immigration and National Identity
1387
States as we know it. Rather, he implies a return to the failed policies
of the past. Professor Huntington offers no other real alternatives.
However, given the nation's embrace of a civil rights consciousness
and multiculturalism, a return to the racially restrictive immigration
laws of the past would create nothing less than a national uproar. As
Professor Hiroshi Motomura stated in reviewing Peter Brimelow's
book Alien Nation,
[T] o use immigration policy to make America more white . . . will
splinter America like nothing else. If we admit or exclude immigrants on
the basis of race, we are more likely to tolerate racial distinctions in the
transition to citizenship and to tolerate the divided society that will
result. While Brimelow rails against multiculturalism, his proposals foster
a different kind of multiculturalism - white separatism.189
In a post-civil-rights-era world, it is far from certain that we can
return to the 1950s and maintain the American identity that Professor
Huntington cherishes. Racial minorities are no longer willing to be
ignored, have their cultures denigrated, and accept mandatory
assimilation. With respect to the national origin group that he labels as
a particular problem,190 Professor Huntington does not discuss realistic
reforms that might address the issue of Mexican migration. Rather, he
leaves open the broad possibilities of immigration restrictions directed
at Mexican immigrants. The chapter focusing on the problem
of Mexican migration suggests that the "problem" requires
harsh measures.191
Like Professor Huntington, we agree on the need for policy
reforms in the realm of immigration law and its enforcement.192
However, the economic and social pressure on immigration seems
extremely difficult to halt instantly. In the long run, a migration
agreement of some sort between the United States and Mexico is one
possible reform measure. A broad-based solution to immigration
between the United States and Mexico seems in order - or at least
worth discussing, analyzing, and criticizing. Such a proposal was on the
table for discussion between the governments of the two nations
immediately before September 11 but evaporated on that day as the
nation focused all its energies on border security, rather than
189. Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional
Immigration Law, 94 MICH. L. REV. 1927, 1951 (1996) (book review) (footnote omitted).
190. See supra text accompanying notes 66-83.
191. See supra text accompanying notes 66-83.
192. See, e.g. , Bill Ong Hing, Answering Challenges of the New Immigrant-Driven
Diversity: Considering Immigration Strategies, 40 BRANDEIS L.J. 861 (2002) (outlining such
strategies); Erin Kragh, Forging a Common Culture: Integrating California's Illegal
Immigrant Population, 24 B.C. THIRD WORLD L.J. 373 (2004) (book review) (offering
integration strategies as an alternative to heightened border enforcement).
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immigration liberalization.193 Economic development of Mexico is
another way to decrease migration pressures; this, of course, is a slow
process that could take generations.194
Long-term reform measures do not negate possible short-term
policy reforms. If it were concluded that closing the borders to
Mexican immigrants was not possible or that the nation decided not to
act aggressively in that realm, 195 assimilation and integration strategies
would seem to be what Professor Huntington advocates. Some policies
that would be consistent with modern civil rights sensibilities probably
would be relatively uncontroversial. For example, increasing access to
English as a Second Language (ESL) classes would hardly seem
debatable. ESL classes are greatly oversubscribed.196 A true
commitment to English militates in favor of devoting greater resources
to ESL courses.
Policies that encourage naturalization are another way of
promoting immigrant assimilation. Citizenship allows full political
participation and full membership in U.S. social life. To avoid
naturalization by fear, 197 steps could be made to encourage
naturalization and allegiance to the United States, which President
Clinton's administration attempted to do only to be severely criticized
by Republicans contending that partisan political ends fueled the
naturalization program.198 Professor Huntington, however, in
criticizing dual citizenship and nationality seems to want to
make naturalization more, not less, difficult.199 This is contrary to a
growing body of scholarship, much of it hoping to promote
immigrant assimilation.200
193. See Johnson, September 11 and Mexican Immigrants, supra note 89, at 866-67. It has
been suggested that immigration among the three nations that are parties to the North
American Free Trade Agreement, like that which exists in the European Union, would be a
viable way of addressing migration pressures. See, e.g., T. Alexander Aleinikoff, Legal
Immigration Reform: Toward Rationality and Equity, in BLUEPRINTS FOR AN IDEAL LEGAL
IMMIGRATION POLICY 5 (Richard D. Lamm & Alan Simpson eds., 2001).
194. See COMMISSION FOR THE STUDY OF INTERNATIONAL MIGRATION AND
COOPERATIVE ECONOMIC DEVELOPMENT, UNAUTHORIZED MIGRATION: AN ECONOMIC
DEVELOPMENT RESPONSE (1990).
195. See supra note 22 (citing authority on difficulties of immigration enforcement).
196. See supra text accompanying notes 148-158.
197. See supra text accompanying notes 72-74.
198. See Johnson, Latina/as and the Political Process, supra note 73, at 930-31.
199. See supra text accompanying notes 48-49.
200. See Gerald L. Neuman, Justifying U.S. Naturalization Policies, 35 VA. J. INT'L L.
237 (1994); Peter J. Spiro, Questioning Barriers to Naturalization, 13 GEO. IMMIGR. L.J. 479
(1999).
May 2005]
Immigration and National Identity
1389
Protecting workers in the workplace also would seem to be a way
of ensuring their economic assimilation.201 Exploitation of immigrants
is a serious problem in the United States and immigrant labor markets
often exist separate and apart from the labor market for citizens.202
This is particularly the case for undocumented workers, the most
exploited of all immigrants.203
CONCLUSION
The fascinating question raised by Professor Huntington is how to
maintain a cohesive national identity in a time when we recognize and
respect differences among peoples. As a nation, we must acknowledge
that a multiracial, multicultural nation may necessitate a more diffuse
national identity than that which existed in past generations. In
considering what it means to be an American, we must recognize the
dangers of the cultural assimilationist strategies like those advocated
by Professor Huntington. Although immigrants do gradually influence
our culture, market forces cause tQ.em to acculturate in rather
conventional ways. Importantly, immigrants contribute greatly to
society and have much to teach us.
Professor Huntington's points should not, however, simply be
brushed aside as irrelevant. We cannot deny the challenges that
multiculturalism presents. Yet, to advance we must be committed to,
not paralyzed by, the task before us. In order to deal with the tension
of a multicultural nation, we must understand its sources and remain
alert. Ignoring the pressure breeds complacency and bitterness.
Understanding and addressing the tension and pressure allows U.S.
society to move forward.
In the end, Professor Huntington's proposals, which call for severe
immigration restrictions, do little to address the tensions caused by an
increasingly multiracial America. Professor Huntington represents
many Americans who are unwilling to strive to develop a multicultural
201. See supra text accompanying note 10 and note 10 (discussing lack of protection
afforded undocumented immigrants under recent Supreme Court decision).
202. See Ruben J. Garcia, Across the Borders: Immigrant Status and Identity in Law and
LatCrit Theory, 55 FLA. L. REV. 5 1 1 (2003); Johnson, Open Borders?, supra note 22, at 22630.
203. See, e.g. , JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR
IMMIGRANT RIGHTS (2005); Ruben J. Garcia, Ghost Workers in an Interconnected World·
Going Beyond the Dichotomies of Domestic Immigration and Labor Laws, 36 U. MICH. J.L.
REFORM. 737 (2003); Jennifer Gordon, We Make the Road by Walking: Immigrant Workers,
the Workplace Project, and the Struggle for Social Change, 30 HARV. C.R.-C.L. L. REV. 407
(1995); Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor
Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345 (2001).
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society, clinging to a Euro-conformist definition of an American, and
offering simple solutions.
We recognize that even a multicultural society must share a core of
values in order to provide a means to live together as a society.
Without a commitment to a common core, balkanization into assorted
factions is likely and eliminating interethnic violence and tension will
prove more difficult. This core, however, need not be more than a
common nucleus. A common core of values encompasses the essence
of good citizenship. It includes respect for the laws, for the democratic
political and economic system, and for equal opportunity. But this
common nucleus is only part of a modern vision of being an American.
The requirement of inclusion and respect for diversity is reciprocal
and applies to all persons in the United States.
Ethnic conflict, divided neighborhoods, economic competitiveness,
and notions of separatism emanating from racial and economic
subordination are not situations limited to far off lands like Bosnia­
Herzegovina, the former Soviet Union, and Somalia. But Professor
Huntington's response to those challenges is not constructive. The
right response involves the willingness of all of us to acknowledge our
responsibility to initiate change and take on the difficult task of how to
make a successful multicultural nation.